COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Beales and Senior Judge Clements
UNPUBLISHED
HEATHER WITT
MEMORANDUM OPINION *
v. Record No. 0986-12-3 PER CURIAM
NOVEMBER 20, 2012
HARRISONBURG ROCKINGHAM
SOCIAL SERVICES DISTRICT
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
James V. Lane, Judge
(W. Andrew Harding; Eldridge, Elledge, Evans & Harding, PLC, on
brief), for appellant. Appellant submitting on brief.
(Kim Van Horn Gutterman, Assistant County Attorney; James O.
Clough, Guardian ad litem for the minor children, on brief), for
appellee. Appellee and Guardian ad litem submitting on brief.
Heather Witt, mother, appeals from an order terminating her parental rights to each of her
five minor children and changing the foster care plan goals to adoption. On appeal of this decision,
mother challenges the sufficiency of the evidence to support the terminations, asserting she
substantially remedied the causes of removal pursuant to Code § 16.1-283(C)(2). For the reasons
stated below, we affirm the decision of the circuit court.
Mother’s parental rights to the five minor children were terminated pursuant to Code
§ 16.1-283(C)(2). Code § 16.1-283(C)(2) provides that a parent’s residual parental rights “of a child
placed in foster care . . . may be terminated if the court finds, based upon clear and convincing
evidence, that it is in the best interests of the child” and that
[t]he parent . . . , without good cause, ha[s] been unwilling or
unable within a reasonable period of time not to exceed twelve
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
months from the date the child was placed in foster care to remedy
substantially the conditions which led to or required continuation
of the child’s foster care placement, notwithstanding the
reasonable and appropriate efforts of social, medical, mental health
or other rehabilitative agencies to such end . . . .
In determining what is in the best interests of a child, this Court has stated
a court must evaluate and consider many factors, including the age
and physical and mental condition of the child or children; the age
and physical and mental condition of the parents; the relationship
existing between each parent and each child; the needs of the child
or children; the role which each parent has played, and will play in
the future, in the upbringing and care of the child or children; and
such other factors as are necessary in determining the best interests
of the child or children.
Barkey v. Commonwealth, 2 Va. App. 662, 668, 347 S.E.2d 188, 191 (1986).
On appeal, we view the evidence in the “‘light most favorable’ to the prevailing party in the
circuit court and grant to that party the benefit of ‘all reasonable inferences fairly deducible
therefrom.’” Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 262, 616 S.E.2d 765, 767
(2005) (quoting Logan v. Fairfax Cnty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d
460, 463 (1991)).
In reviewing a trial court’s decision terminating parental rights, we presume the trial court
“‘thoroughly weighed all the evidence, considered the statutory requirements, and made its
determination based on the child’s best interests.’” Logan, 13 Va. App. at 128, 409 S.E.2d at 463
(quoting Farley v. Farley, 9 Va. App. 326, 329, 387 S.E.2d 794, 796 (1990)). The trial court has
“broad discretion in making the decisions necessary to guard and to foster a child’s best interests.”
Farley, 9 Va. App. at 328, 387 S.E.2d at 795. “When based on evidence heard ore tenus,” the trial
court’s judgment “will not be disturbed on appeal unless plainly wrong or without evidence to
support it.” Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988).
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Mother argues that while she has not been perfect in the remediation of her issues, she has
improved her situation markedly in the majority of areas that were the causes for the removal of the
children.
The evidence showed mother’s oldest child, C.T., was placed in foster care in March 2002
due to mother’s failure to follow through with court-ordered counseling and other services. In
addition, mother was habitually unemployed, there were instances of domestic violence in the
household, and stable housing was an issue. Mother received a psychological evaluation and was
diagnosed with possible bipolar disorder. Custody of C.T was awarded to the father in 2004, but
C.T. returned to foster care in July 2010.
In 2003, mother gave birth to C.F. In September 2005, mother was residing with Aaron
Shifflett with whom she had a child, C.S. At this time, C.F. was twenty months old and she was
adjudicated an abused and neglected child based upon bruising on her face and buttocks. Shifflett
admitted he grabbed C.F. by the face and pushed her down onto a bed. C.F. and C.S., who was five
months old, were removed from the home, and C.S. was also found to be at risk of abuse and
neglect.
The Harrisonburg Rockingham Social Services District (HRSSD) provided in-home
services to mother, including family and individual counseling, parenting classes, and drug
screening. Mother found employment and housing, and the children’s custody was returned to her
in June 2006.
In March 2009, Shifflett was convicted of child abuse and neglect related to C.S., who was
then three years old. By this time, mother had given birth to two more children with Shifflett, D.S.
and R.S. Mother, who no longer resided with Shifflett, would allow the children to spend days with
Shifflett, although she told a social worker that Shifflett had substance abuse problems and had been
convicted of abusing one of the children. The Harrisonburg-Rockingham Juvenile and Domestic
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Relations District Court (JDR court) entered child protective orders ordering that mother and
Shifflett not consume alcohol and that Shifflett have no direct contact with the children. However,
mother continued to allow Shifflett to have contact with the children, including C.S., in violation of
the protective order. Mother and Shifflett remained under the protective orders until the hearing in
May 2012.
Meanwhile, mother, who was unemployed, was residing with her boyfriend, David Moats,
and her four younger children, C.F., C.S., D.S., and R.S, ages five and younger and she was
receiving housing assistance to help her provide a home for her family. During this time, C.S.
began to act aggressively and started receiving counseling services.
In September 2009, mother attempted suicide, and the children saw her lying unconscious
on the floor as a result of an overdose. Mother was referred to mental health treatment, which she
did not complete. When Moats lost his job, the family’s income consisted of Moats’s
unemployment and money received from selling blood plasma. The family also received TANF,
food stamps, and services from HRSSD such as bus fare, clothing, payment of some household
bills, and assistance to mother to help with her job search.
In January 2010, HRSSD learned of ongoing violence between mother and Moats. The
children reported seeing Moats choke their mother, and two of the children reported seeing a gun
during the incident. The protective order was amended to require that no guns be present in the
home. In June 2010, mother admitted that she used marijuana and that Moats used drugs. In July
2010 mother reported that Moats tried to run over her with his vehicle. Also in July 2010, a few of
the children reported that they had seen Moats hit or choke their mother several times. HRSSD
employees advised mother it was not wise to continue her relationship with Moats based on the
abuse issues and his drug use. Mother responded that she depended on his unemployment income.
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During this same time period, HRSSD received reports that the children were unsupervised
although mother was not working outside the home. When HRSSD found the three-year-old child
at home alone, he smelled of urine and was wearing the same clothes he had worn on the previous
day. An employee of HRSSD found two of the children, ages six and three, walking along the
street.
Mother told a HRSSD worker she was “stressed out” and there were mornings when she
wished she did not wake up. Mother had not followed up with her counseling. HRSSD continued
to provide services, clothing, and financial assistance to the family. An employee with HRSSD
testified that almost every person in the family needed some type of services, but the situation was
deteriorating. The HRSSD employee met with mother numerous times in the summer of 2010
trying to improve the family’s circumstances. Finally, on July 21, 2010, the four children were
removed from the home and were placed into foster care. Mother stipulated to the fact that her
children were neglected. At that time, several of the children were in counseling. One child was
receiving speech services, and another child had a behavioral specialist at his school. This was the
third time two of the children had been adjudicated to be abused or neglected or at risk of abuse and
neglect, and it was their second placement into foster care. C.T., who had been in the custody of her
father since 2004, also entered foster care on July 21, 2010.
Nicole Zepp, a foster care social worker, testified that, in order for the children to be
returned to mother’s care, mother needed to address issues related to substance abuse, stable
income, housing, domestic violence, and her mental health. Mother participated in a psychological
evaluation which indicated mother had substance abuse issues. Mother sporadically attended
substance abuse counseling from May 2011 until August 2011, participating in six of thirteen
sessions. She continued to use alcohol despite the protective order ordering her not to consume
alcohol.
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Although the mental health evaluation recommended treatment for mental health issues,
mother failed to complete any such programs. She attended one intake appointment only. The
evaluation also indicated mother lacked an understanding of the children’s developmental levels,
which put the children at high risk of physical neglect and abuse.
From March 2011 to February 2012, family educational services provided services to
mother addressing her parenting issues. A licensed clinical social worker testified that, despite the
in-home services provided during mother’s visits with the children, she did not see many changes in
mother’s supervisory skills and in following through with rules and structure for the children. In
January 2012, mother’s visits with the children were moved to the family educational services office
based on concerns for mother’s supervisory skills and the family dynamics. The social worker
testified mother placed much of the blame on her children’s behavior as the reason they could no
longer visit in the home.
At the time of the circuit court hearing on May 3, 2012, mother was concerned about losing
her housing and she had received a letter from the housing authority indicating she had not provided
the required documentation. Mother admitted she had a “spotty” employment record prior to the
removal of the children in July 2010. She testified she was employed from August 2010 to October
2011 at an automobile detailing business. At the time of the hearing, mother had not been
employed for over six months and she was receiving unemployment benefits. In addition, mother
continued to have a relationship with Shifflett, who was arrested in 2011 for being drunk in public
in an area behind mother’s residence.
At the time of the circuit court hearing, the children had been in foster care for almost two
years. C.S. was attending an alternative school for children with severe behavioral difficulties, and
his behavior had improved. Officials were considering transitioning him into public school.
Evidence was presented that C.S. became more aggressive during visits with his mother. However,
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his relationship with his foster parents was positive. Several of the children were receiving
counseling services. The two youngest children were placed together in a foster home, and their
behavioral issues had improved. The foster families were potential adoptive parents, and they
expressed a willingness to maintain contact between all the children.
Clear and convincing evidence proved that termination of mother’s parental rights was in
the best interests of the children because, despite the efforts of HRSSD, mother had been unwilling
or unable to remedy substantially the conditions that led to and required the continuation of the
children’s foster care placement. As recited above, mother’s children had been in and out of foster
care since 2002. Mother had supervisory issues with the children for years and showed little
improvement in that area after they were removed from the home despite the services provided.
Mother continued to use alcohol and had not completed recommended substance abuse treatment.
In addition, she failed to complete treatment for her mental health issues, which were diagnosed as
far back as 2002 and for which she had had numerous referrals for treatment. Mother was
unemployed at the time of the hearing and continued to have a relationship with Shifflett despite the
fact that he had abused two of her children and also had substance abuse issues. In addition, mother
indicated she may be losing her housing. Moreover, the children were improving in foster care.
The children had been in foster care for almost two years at the time of the hearing. We
recognize that “‘[t]he termination of [residual] parental rights is a grave, drastic and irreversible
action.’” Helen W. v. Fairfax Cnty. Dep’t of Human Dev., 12 Va. App. 877, 883, 407 S.E.2d 25,
28-29 (1991) (quoting Lowe v. Dep’t of Pub. Welfare of Richmond, 231 Va. 277, 280, 343 S.E.2d
70, 72 (1986)). However, “[i]t 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 her]
responsibilities.” Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d
492, 495 (1990). Furthermore, “‘past actions and relationships over a meaningful period serve as
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good indicators of what the future may be expected to hold.’” Winfield v. Urquhart, 25 Va. App.
688, 695-96, 492 S.E.2d 464, 467 (1997) (quoting Linkous v. Kingery, 10 Va. App. 45, 46, 390
S.E.2d 188, 194 (1990)). In addition, decisions to terminate parental rights under Code
§ 16.1-283(C)
hinge not so much on the magnitude of the problem that created
the original danger to the child, but on the demonstrated failure of
the parent to make reasonable changes. Considerably more
“retrospective in nature,” subsection C requires the court to
determine whether the parent has been unwilling or unable to
remedy the problems during the period in which he [or she] has
been offered rehabilitation services.
Toms, 46 Va. App. at 271, 616 S.E.2d at 772 (quoting City of Newport News Dep’t of Soc. Servs.
v. Winslow, 40 Va. App. 556, 562-63, 580 S.E.2d 463, 466 (2003)).
The evidence showed mother has been unwilling or unable to remedy the conditions
which led to or required continuation of the children’s foster care placement during the period in
which she has been offered considerable rehabilitation services. Based upon the foregoing, the
circuit court did not err in changing the goals of the foster care plans to adoption, in finding
termination was in the best interests of the children, and in terminating mother’s parental rights
pursuant to Code § 16.1-283(C)(2). Therefore, the circuit court’s decision is affirmed.
Affirmed.
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Heather Witt v. Harrisonburg Rockingham Social Services District
Combined Opinion