COURT OF APPEALS OF VIRGINIA
Present: Judges McClanahan, Haley and Senior Judge Willis
ANGELA GOREE
MEMORANDUM OPINION *
v. Record No. 0210-09-4 PER CURIAM
JULY 21, 2009
CULPEPER COUNTY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF CULPEPER COUNTY
John G. Berry, Judge
(Gilbert Harrison Berger; Berger Law Office, P.C., on brief), for
appellant. Appellant submitting on brief.
(Robert F. Beard; Christian A. Brashear, Guardian ad litem for the
minor child, on brief), for appellee. Appellee and Guardian ad
litem submitting on brief.
Angela Goree appeals the termination of her residual parental rights to her child, T.W.,
pursuant to Code § 16.1-283(C)(1) and (2). She argues the trial court erred in finding the
Department of Social Services (the Department) made reasonable efforts to investigate
appropriate relative placements. She also challenges the sufficiency of the evidence supporting
the termination of her parental rights under both subsections and argues the termination of her
parental rights is not in the best interests of her child. Upon reviewing the record and briefs of
the parties, we affirm the decision of the trial court.
I.
On appeal, we view the evidence “in the light most favorable to the prevailing party
below and its evidence is afforded all reasonable inferences fairly deducible therefrom.” Logan
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
v. Fairfax County Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991)
(citation omitted). The Department “has an affirmative duty to investigate all reasonable options
for placement with immediate relatives” before the termination of parental rights. Sauer v.
Franklin County Dep’t of Soc. Servs., 18 Va. App. 769, 771, 446 S.E.2d 640, 641 (1994); see
Hawthorne v. Smyth County Dep’t of Soc. Servs., 33 Va. App. 130, 139-40, 531 S.E.2d 639, 644
(2000).
Code § 16.1-283(A) provides that in a termination of parental rights case “the court shall
give a consideration to granting custody to relatives of the child, including grandparents.”
[B]efore the court grants custody of a child, under the provisions of
Code § 16.1-283(A) the Department has a duty to produce
sufficient evidence so that the court may properly determine
whether there are relatives willing and suitable to take custody of
the child, and to consider such relatives in comparison to other
placement options.
Logan, 13 Va. App. at 131, 409 S.E.2d at 465.
The duty to investigate is a rule of reason dependent upon the particular facts and
circumstances of each individual case. “As long as evidence in the record supports the trial
court’s ruling and the trial court has not abused its discretion, its ruling must be affirmed on
appeal.” Brown v. Brown, 30 Va. App. 532, 538, 518 S.E.2d 336, 338 (1999).
Here, the Department thoroughly investigated the maternal grandmother, whom the
mother identified as a potential custodian for the child. The Department presented evidence
supporting its determination that the maternal grandmother was not a suitable custodian for the
child. Thus, the trial court considered evidence as to the suitability of placing the child with the
maternal grandmother before it ordered the termination of mother’s parental rights.
Mother identified no other relatives who may have been willing to take custody of the
child. “It is well established in Virginia that a court will not compel ‘a vain and useless
undertaking.’” Hawthorne, 33 Va. App. at 139, 531 S.E.2d at 644 (citation omitted). “We do
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not suggest that the Department has a duty in every case to investigate the home of every relative
of the children, however remote, as a potential placement.” Sauer, 18 Va. App. at 771, 446
S.E.2d at 642.
The maternal grandmother appeared at trial, and mother concedes that the evidence at
trial indicated no substantive change in the relative’s situation since the time the Department first
investigated her as a possible relative placement in 2005. The grandmother acknowledged that
she also cared for her mentally handicapped adult child, had chronic high blood pressure and
heart murmurs. She stated her health had recently declined and that she was on medication for
depression. She also admitted that caring for T.W. would “be a stiff burden for her.”
Therefore, we find that the Department presented sufficient evidence for the trial court to
consider the suitability of placing the child with relatives prior to terminating mother’s parental
rights.
II.
Pursuant to Code § 16.1-283(C)(1), a trial court may terminate the rights of a parent to a
child upon clear and convincing evidence that the parent,
without good cause, failed to maintain continuing contact with and
to provide or substantially plan for the future of the child for a
period of six months after the child’s placement in foster care
notwithstanding the reasonable and appropriate efforts of social,
medical, mental health or other rehabilitative agencies to
communicate with the parent . . . and to strengthen the parent-child
relationship. Proof that the parent . . . ha[s] failed without good
cause to communicate on a continuing and planned basis with the
child for a period of six months shall constitute prima facie
evidence of this condition[.]
Termination pursuant to Code § 16.1-283(C)(2) requires proof that the parent, “without good
cause, ha[s] 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
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which led to or required continuation of the child’s foster care placement,” notwithstanding
reasonable and appropriate efforts of service agencies.
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)). ‘“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. 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)).
T.W. was born on August 28, 1999 and first placed in foster care in August 2003. He
was briefly returned to mother’s care before she signed an entrustment agreement with the
Department for the care of T.W. T.W. suffers from severe hearing loss, has physical disabilities,
and has special education needs. His special needs required his placement outside the
Commonwealth at a facility in Florida.
A foster care plan, prepared in April 2005, required mother to meet several goals
including the completion of a child development class, a parenting class, obtaining stable
employment, completion of a first aid class, completion of a sign language class, and completion
of individual therapy. Despite the child’s being in foster care for approximately four years,
mother has failed to demonstrate she met any of these goals. In fact, mother failed to notify the
Department when she moved and stated she could not meet the plan goals due to the needs of her
other children.
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Valerie Ward, foster care supervisor, testified that three home studies had been conducted
and each resulted in a determination that mother’s existing home at each time was an
inappropriate placement. Ward explained the child had improved and made substantial progress
in his current facility; he learned sign language and could bathe and walk without assistance.
She emphasized that permanency and consistency would benefit the child and that making him
available for adoption was in his best interests.
Mother had been offered services, such as transportation to meetings, and was allowed
supervised visitation, which mother did not always attend. The Department was unable to
provide services to mother when mother moved out of Virginia.
Mother admitted she was aware of the requirements imposed by the Department and
stated she could not meet the goals due to the costs associated with them. She admitted she had
five or six different residences since the implementation of the foster care plan in 2005 and was
not currently employed. She acknowledged she had not seen the child since he was four years
old.
Mother contends the evidence did not support a termination of her parental rights
pursuant to Code § 16.1-283(C)(1), asserting her failure to maintain contact with her child or
substantially plan for the future of the child was justified by good cause. She also contends the
Department failed to make reasonable and appropriate efforts to provide her with services.
However, the evidence proved mother was aware of the conditions imposed in the foster
care plan and the record demonstrates she made no efforts to fulfill any of the requirements. Her
failure to fulfill the requirements was not based solely on her inability to pay for classes or
services. Instead, she declined to make any effort to learn sign language in order to
communicate with her son and did not avail herself of the services offered by the Department.
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Mother failed to maintain contact with the Department, did not inform the Department of
her various address changes, and did not attend all the arranged visitations. At the time of the
2008 termination hearing, mother had had no contact with T.W. for several years. Mother failed
to demonstrate good cause for her lack of contact with T.W. or her failure to plan for his future.
“‘Reasonable and appropriate’ efforts can only be judged with reference to the
circumstances of a particular case. Thus, a court must determine what constitutes reasonable and
appropriate efforts given the facts before the court.” Ferguson v. Stafford County Dep’t of Soc.
Servs., 14 Va. App. 333, 338, 417 S.E.2d 1, 4 (1992). “The law does not require the division to
force its services upon an unwilling or disinterested parent.” Barkey v. Commonwealth, 2
Va. App. 662, 670, 347 S.E.2d 188, 192 (1986). Mother did not maintain visitation with the
child, and she failed to sustain contact with the Department or involve herself in planning for the
child. Mother did not avail herself of the services offered by the Department. The record
supports the court’s conclusion that reasonable and appropriate efforts were made to
communicate with mother and to strengthen the parent-child relationship.
III.
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.
Id. at 668, 347 S.E.2d at 191.
T.W. has improved dramatically in the facility where he has resided. Although mother
claims she will be capable of providing a suitable home for T.W. and would have access to
services in her residence in Maryland, she has demonstrated no ability to care for or even
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communicate with her child. In this regard, mother’s “‘past actions . . . 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) (quoting Linkous v. Kingery, 10 Va. App. 45,
46, 390 S.E.2d 188, 194 (1990)).
We recognize that “‘[t]he termination of [residual] parental rights is a grave, drastic and
irreversible action.’” Helen W. v. Fairfax County Dep’t of Human Dev., 12 Va. App. 877, 883,
407 S.E.2d 25, 28-29 (1991) (quoting Lowe v. Dep’t of Public 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 responsibilities.” Kaywood v. Halifax County Dep’t of Soc. Servs., 10 Va. App.
535, 540, 394 S.E.2d 492, 495 (1990). The record supports the trial court’s finding that the best
interests of T.W. would be served by terminating mother’s parental rights.
IV.
Mother also contends the trial court erred in terminating her residual parental rights
pursuant to Code § 16.1-283(C)(2). Because we conclude the trial court’s decision terminating
mother’s parental rights was warranted under Code § 16.1-283(C)(1), we need not reach this
issue. When a trial court’s judgment is made on alternative grounds, we need only consider
whether any one of the alternatives is sufficient to sustain the judgment of the trial court and, if
we so find, need not address the other grounds. See Fields, 46 Va. App. at 8, 614 S.E.2d at 659
(termination of parental rights upheld under one subsection of Code § 16.1-283 forecloses need
to consider termination under alternative subsections).
Accordingly, the trial court’s decision is affirmed.
Affirmed.
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Angela Goree v. Culpeper County Department of Social Services
Combined Opinion