COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Beales and Senior Judge Annunziata
BRANDY McCOY, SOMETIMES KNOWN AS
BRANDI McCOY
MEMORANDUM OPINION *
v. Record No. 1264-10-3 PER CURIAM
DECEMBER 7, 2010
GRAYSON COUNTY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF GRAYSON COUNTY
Brett L. Geisler, Judge
(J. L. Tompkins, IV, on brief), for appellant. Appellant submitting
on brief.
(Graham M. Parks; Kimberly L. Osborne, Guardian ad litem for the
minor children, on brief), for appellee. Appellee and Guardian
ad litem submitting on brief.
Brandy McCoy, s/k/a Brandi McCoy (hereinafter “mother”), appeals the termination of
her residual parental rights to her children, J.P. and H.C. Mother asserts the evidence was
insufficient to support the trial court’s decision. For the reasons stated, we affirm the trial court’s
decision.
Background
When reviewing a decision to terminate parental rights, we presume the circuit court
“‘thoroughly weighed all the evidence, considered the statutory requirements, and made its
determination based on the child’s best interests.’” Toms v. Hanover Dep’t of Soc. Servs., 46
Va. App. 257, 265-66, 616 S.E.2d 765, 769 (2005) (quoting Fields v. Dinwiddie County Dep’t of
Soc. Servs., 46 Va. App. 1, 7, 614 S.E.2d 656, 659 (2005)).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
The children were removed from mother’s care in Ashe County, North Carolina, on or
about June 11, 2008, when mother signed a safety plan. They were placed with their maternal
grandmother, Gail Trivett, and an uncle, D.J. McCoy, in Grayson County, at which time the
Grayson County Department of Social Services (“DSS”) monitored the children.
On June 20, 2008, mother was arrested and incarcerated in North Carolina on five
drug-related felonies. On June 24, 2008, DSS removed the children from Trivett’s home
pursuant to an emergency order finding abuse and neglect after D.J. McCoy was also arrested.
Trivett’s health did not permit her to take care of the children without full-time assistance.
The drug charges against mother were not pursued in the lower court, but she was
indicted in October 2008 and pled guilty to one or more felonies in March 2009. Between June
2008 and March 2009 mother spent several months in jail. She was released from jail in March
2009.
Upon her release from incarceration, mother completed her GED, completed counseling
and parenting classes, found a job, and rented a home from a sibling. However, mother quit her
job after only six weeks, and in September 2009, her sibling advised her she needed to move out
of her sibling’s residence. Mother failed to stay in touch with DSS after leaving her sibling’s
residence. After making several failed attempts to get in touch with mother, DSS learned in late
September 2009 she was staying in Trivett’s home and had no transportation of her own. In
November 2009 mother had relocated to her father’s home in North Carolina. Placement in her
father’s home was not an option due to a substantiated sexual abuse investigation by the North
Carolina Department of Social Services. In December 2009 mother refused to supply DSS with
her address and did not give DSS her phone number and address until shortly before the initial
termination hearing in February 2010.
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On February 16, 2010, the juvenile and domestic relations district court terminated
mother’s residual parental rights. Mother was allowed supervised telephone calls with her
children once a week, but despite several attempts by DSS to reach her, the children spoke with
mother only once prior to the circuit court hearing on April 16, 2010. At that time, the trial court
granted DSS’s petition to terminate her rights. The trial court found that, “except for a brief
six-week period,” mother had not followed the court’s instructions or DSS’s recommendations
by obtaining full-time employment and a safe home for her and her children. While mother
appeared at the hearing with a home and a job, she was unable to assure the trial court she would
be able to maintain either. Her only other employment prospect at the time of the hearing was a
restaurant open only on a seasonal basis. The children had adjusted well to their foster care
placements and were doing well in school academically and socially.
Analysis
Mother maintains she substantially remedied the conditions which led to or required
continuation of her children’s foster care placement. She notes that she supplied DSS with a new
address on January 10, 2010, but DSS made no effort to assess the home’s suitability. She also
points out she had a job on a farm as of April 2010.
“‘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.”’” Toms, 46
Va. App. at 266, 616 S.E.2d at 769 (quoting Fields, 46 Va. App. at 7, 614 S.E.2d at 659 (other
citation omitted)). “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.’” Id.
(quoting Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)).
Pursuant to Code § 16.1-283(C)(2),
The residual parental rights of a parent or parents of a child placed
in foster care as a result of . . . an entrustment agreement entered
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into by the parent . . . 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:
* * * * * * *
2. The parent or parents, without good cause, have been
unwilling or unable within a reasonable period of time not to
exceed twelve 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. Proof that the parent or parents, without good cause, have
failed or been unable to make substantial progress towards
elimination of the conditions which led to or required continuation
of the child’s foster care placement in accordance with their
obligations under and within the time limits or goals set forth in a
foster care plan filed with the court or any other plan jointly
designed and agreed to by the parent or parents and a public or
private social, medical, mental health or other rehabilitative agency
shall constitute prima facie evidence of this condition. The court
shall take into consideration the prior efforts of such agencies to
rehabilitate the parent or parents prior to the placement of the child
in foster care.
(Emphasis added).
At the time mother’s parental rights were terminated, her children had been removed
from her custody for almost two years. While mother briefly attempted to remedy the conditions
which led to the children’s removal, she was unable to sustain that effort by obtaining stable
employment and housing. “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
her] responsibilities.” Kaywood v. Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492,
495 (1990).
Virginia law recognizes the “maxim that, sometimes, the most
reliable way to guage a person’s future actions is to examine those
of his past.” Petry v. Petry, 41 Va. App. 782, 793, 489 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).
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“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, 46 Va. App. at 267-68, 616 S.E.2d at 770. Here, despite evidence mother loved her
children and a bond existed between them, she was unable to provide them with the stable home
and care necessary to meet their needs.
The decision of the trial court is not plainly wrong or without evidence to support it.
Accordingly, we affirm the decision.
Affirmed.
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