Shelly M. Martin v. Norfolk Department of Human Services

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Beales and Powell

SHELLY M. MARTIN
MEMORANDUM OPINION *
v. Record No. 2464-08-1 PER CURIAM
MARCH 24, 2009
NORFOLK DEPARTMENT OF
HUMAN SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John C. Morrison, Jr., Judge

(Kelly B. St. Clair; St. Clair & Rosenblum, on brief), for appellant.

(Bernard A. Pishko, City Attorney; Martha G. Rollins, Deputy City
Attorney; Shelly F. Wood, Guardian ad litem for the minor child,
on brief), for appellee.

By order entered on August 19, 2008, the trial court terminated the residual parental rights

of Shelly Martin to her son, I.M., pursuant to Code § 16.1-283(B) and (C)(2). On appeal, Martin

challenges the sufficiency of the evidence to support the termination. Upon reviewing the record

and briefs of the parties, we conclude this appeal is without merit. Accordingly, we summarily

affirm the decision of the trial court. 1 See Rule 5A:27.

Under Code § 16.1-283(B), the parental rights of a parent of a neglected or abused child

may be terminated if the court finds by clear and convincing evidence that termination is in the best

interests of the child and that:

1. The neglect or abuse suffered by such child presented a serious
and substantial threat to his life, health or development; and

*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
In Stewart v. Norfolk Dep’t of Human Servs., Record No. 2182-08-1, released this day,
we summarily affirmed the trial court’s termination of the parental rights of I.M.’s father.
 2. It is not reasonably likely that the conditions which resulted in
such neglect or abuse can be substantially corrected or eliminated
so as to allow the child’s safe return to his parent or parents within
a reasonable period of time. In making this determination, the
court shall take into consideration the efforts made to rehabilitate
the parent or parents by any public or private social, medical,
mental health or other rehabilitative agencies prior to the child’s
initial placement in foster care.

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

which led to or required continuation of the child’s foster care placement,” notwithstanding

reasonable and appropriate efforts of services agencies.

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 County Dep’t of Human Dev., 13 Va. App. 123, 128, 409

S.E.2d 460, 463 (1991)). 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.’” Id. at 265-66, 616 S.E.2d at 769

(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 Logan, 13 Va. App. at 128, 409 S.E.2d at 463 (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)).

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 I.M. was born on April 27, 1997. On December 17, 2005, when I.M. was eight, Martin

was charged with contributing to the delinquency of I.M. It was reported that for three hours at

night I.M. was locked out of the room of the boarding house where he lived with Martin. 2 When

the police responded, they knocked on the door, but Martin did not answer. Eventually, Martin

came to the door and stated she had been asleep because she was sick. A neighbor reported that

I.M. frequently was outside the home alone at night. Finding Martin guilty of the charged

offense, the juvenile and domestic relations district court (juvenile court) noted that it was

Martin’s third instance of child neglect. At Martin’s sentencing hearing on February 16, 2006,

the juvenile court removed I.M. from Martin’s care due to chronic neglect and unsafe living

conditions.

I.M. entered foster care in March 2006. For approximately one year thereafter, Martin

did not maintain regular contact with the Norfolk Department of Human Services (NDHS), nor

did she regularly participate in supervised visitation with I.M. 3 She failed to appear for

scheduled visits with I.M. or contact NDHS to reschedule the visit. The foster care service plan

required her to complete parenting classes, obtain substance abuse treatment, maintain safe and

stable housing, and obtain employment. Martin failed to comply with these requirements.

After I.M.’s removal from the home, Martin gave birth to two children, one of whom

tested positive for drugs at birth. The father of the two children was Roosevelt Hughes.

When he entered foster care, I.M. displayed persistent behavioral and emotional

disturbances both at home and at school. Most of I.M.’s social contact with peers at school

2
Martin had two children older than I.M. who were in the custody of a relative. Martin
did not have regular contact with the older children.
3
Records of NDHS indicate that during this period of time, Martin’s whereabouts
frequently were unknown, and documents sent to her by certified mail were returned to the
agency.

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ended in conflict. He was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). In

the foster home, there were several instances of I.M. acting out in a sexual manner. He also had

a history of bed-wetting. I.M. reported that his mother had left him alone at night for long

periods of time, which frightened him. In an August 2006 evaluation, representatives of the

Tidewater Child Development Clinic recommended that I.M. receive therapy to address his

emotional distress disorder and family therapy to help him manage his disruptive behavior. I.M.

was living with a foster family that was interested in adopting him.

On November 2, 2007, Martin was convicted of a probation violation and received a

three-year sentence. She is scheduled for release from incarceration in November 2009. At the

termination hearing on August 19, 2008, Martin testified that she had completed substance abuse

treatment and parenting classes while incarcerated. Martin further stated that if the trial court

ordered I.M. returned to her custody, the child would have a suitable home with Hughes.

Martin argues the evidence did not prove she was unable or unwilling to remedy the

conditions that led to I.M.’s placement in foster care within a reasonable period of time. At the

time of the termination hearing, Martin was incarcerated. The evidence proved that for more

than a year after I.M.’s placement Martin had made no progress toward the goals required for

reunification with her son. Nor did she maintain consistent contact with I.M. or NDHS. “[P]ast

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) (quoting Linkous v. Kingery, 10 Va. App. 45, 46, 390 S.E.2d 188, 184 (1990)).

Martin contends the trial court erred in finding termination of her parental rights was in

I.M.’s best interests. In determining whether termination 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
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 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).

I.M. was removed from Martin’s care in early 2006 due to chronic neglect and an unsafe

residence. At the time of the termination hearing more than two years later, Martin was

incarcerated with expected release in November 2009. Martin’s incarceration was “a valid and

proper circumstance which, when combined with other evidence concerning the parent/child

relationship, can support [the] court’s finding that the best interests of the child will be served by

termination.” Ferguson v. Stafford County Dep’t of Soc. Servs., 14 Va. App. 333, 340, 417

S.E.2d 1, 5 (1992). Although appellant, while incarcerated, has completed some of the

requirements of the foster care service plan, she has failed to maintain consistent contact with

I.M. in any manner in the years following his foster care placement, and has apparently

continued to use controlled substances. By contrast, I.M.’s foster care family, which is interested

in adopting him, has consistently provided for his needs and helped him cope with ADHD,

destructive behavior, and emotional difficulties.

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 [or her] responsibilities.” Kaywood v. Halifax County Dep’t of Soc. Servs., 10

Va. App. 535, 540, 394 S.E.2d 492, 495 (1990).

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 Because sufficient evidence supports the trial court’s decision, we summarily affirm the

termination of Martin’s parental rights pursuant to Code § 16.1-283(B) and § 16.1-283(C)(2).

Affirmed.

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