C.S. v. Virginia Beach Department of Social Services

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Humphreys and McClanahan
Argued at Chesapeake, Virginia

C. S.
OPINION BY
v. Record No. 3156-02-1 JUDGE ELIZABETH A. McCLANAHAN
SEPTEMBER 30, 2003
VIRGINIA BEACH DEPARTMENT OF
SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Edward W. Hanson, Jr., Judge

Deborah Vatidis Bryan (Kaufman & Canoles,
P.C., on brief), for appellant.

Lee E. Devendorf, Assistant City Attorney
(Leslie L. Lilley, City Attorney; Nianza E.
Wallace II, Assistant City Attorney; Office
of the City Attorney, on brief), for appellee.

C.S. (mother) appeals a decision of the Circuit Court of

the City of Virginia Beach terminating her parental rights to

her child, B.B., and awarding custody of the child to the

Virginia Beach Department of Social Services. On appeal, mother

contends that the trial court erred in ruling (1) that there was

clear and convincing evidence satisfying the statutory factors

required by Code § 16.1-283(C)(2) for termination of appellant's

residual parental rights as to B.B.; (2) that there was clear

and convincing evidence that termination of appellant's residual

parental rights was in the child's best interests; and (3) that

appellant's constitutional right to privacy to raise her child
as she sees fit, within the constraints of the law, was

violated.1 For the reasons that follow, we reverse, vacate and

remand.

I. Background

On October 11, 2000, the Child Protective Services division

of the Virginia Beach Department of Social Services (DSS)

received a referral regarding young children found alone at a

store at an early hour of the morning. A DSS investigator

located mother at her job and accompanied her back to her home

where four minor children, E. (born June 16, 1989), C. (born

March 9, 1990), I. (born January 28, 1993), and B.B. (born

January 13, 1999), were found alone without supervision.

Evidence at hearing included testimony that an older teenage

child of mother was left to babysit the children, but that the

teenage child had left them unsupervised, unbeknownst to the

mother. The children appeared healthy and well fed. The

investigator developed a safety plan with mother to remedy any

future supervision problems, and left the home.

Very early on October 12th, mother called her supervisor at

work to explain what had happened the previous day and to inform

her employer that she could not return to work due to problems

with the children. Later that day, the DSS investigator visited

1
Because the application of Code § 16.1-283(C)(2) to
appellant's first question presented decides the case, we do not
address appellant's remaining questions.

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the home and not finding mother and children there, became

concerned that mother had "absconded" with the children. Mother

was not under any court order or duty to remain at the home.

The DSS investigator immediately filed a petition for an

emergency removal order in the juvenile and domestic relations

district (J&DR) court. The court entered the emergency removal

order on October 19, 2000, finding "severe neglect" and that

mother had "absconded" with the children. In the same order,

the court appointed a guardian ad litem to represent the

children.2

In the meantime, mother took the older children to the

health department, first to be immunized, and again for

physicals, so that she could enroll the children in public

school. She enrolled two of the children in school on October

31, 2000. B.B., who was still nursing, had not yet reached

2
The guardian ad litem failed to file a brief or appear at
hearing in violation of Rules 1:5 and 5A:19 of the Rules of the
Virginia Supreme Court. However, at the trial de novo in the
trial court, the guardian ad litem recommended to the chancellor
that the children be returned to mother. He stated, "I am
completely against Social Services at this point as to what's
happened, the end result of this case." "In my opinion, they
were totally disingenuous from day one." He also stated, "Your
Honor, I look at the statute, 283C, 16.1 283C [sic], [m]other
has been substantially able to remedy the conditions which
caused the children to be put in foster care initially, or
caused them to be removed notwithstanding the efforts of social
services." He continued, "I guess the net result, Judge, is
it's like amputating a finger to get out a splinter. Social
Services, in my opinion, has gone way overboard." He concluded,
"In my opinion, [DSS] will never give these kids back to her."
"Virginia Beach Social Services will never, ever agree this
woman is cooperating in any fashion."
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school age, and mother was in the process of investigating where

to enroll E., the oldest of the four children.

On November 1, 2000, the DSS investigator found mother with

the children at the home of mother's sister in Hampton. The

investigator, with the order of the J&DR court, entered the home

with two uniformed police, seized the children, and detained

mother. Initially, the children were placed in the same foster

home together. Shortly thereafter, due to disruption in the

foster home, the foster parents asked that the three older

children be placed elsewhere.3 On December 20, 2000, the J&DR

court entered an order maintaining custody of the children in

DSS foster care, and set a hearing date for January 2001.

Concurrent with the hearing, on January 16, 2001, DSS filed

a foster care service plan, as required by Code § 63.2-906. The

plan detailed that the children were placed into foster care

based on the lack of supervision incident, mother's alleged

"absconding" with the children, and the children's lack of

schooling. The goal of the plan was to return the children to

the parent. The requirements that mother had to meet in order

for the children to be returned were: (1) obtain psychological

evaluation and follow the recommendations of the therapist for

3
Subsequently, between the children, over a
twenty-four-month period there were eighteen different
placements: E. was placed in nine or ten different foster
homes, C. in two, and I. in five or six. B.B. remained in the
same home throughout.

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individual therapy; (2) obtain suitable employment in an effort

to provide financial stability in caring for the children and

herself; (3) provide adequate furnishings for the children, i.e.

beds or mats for sleeping; (4) become involved in family therapy

through the Comprehensive Mental Health Program; (5) provide

adequate supervision for her children at all times and provide

names of available backup babysitters; and (6) maintain

children's enrollment in an educational program certified by the

state, or provide DSS with proof of certification to home school

the children. According to the record, DSS was mostly concerned

with mother's "secretive lifestyle" and her distrust of

government. The trial judge reiterated this in his ruling at

hearing:

I think we all know the real reason for the
problem, and the problems – the problems in
the case, the real core reason is Ms. [S.]'s
fundamental belief is [sic] that she cannot
– the government cannot be trusted. The
authorities cannot be trusted, and that she
alone is the person who decides what's best
for her children. Because of that belief,
they have basically lived in this secretive
environment in this city of 435,000 people
for about two years. And if it hadn't been
for that episode at Kmart, I suspect that
nothing would have changed.

On February 20, 2001, mother underwent psychological

evaluation by Robert Seltzer, Ph.D., who found that mother was

"hypersensitive to being controlled," that she saw "the world

much differently than most," and that she was "at risk for

decompensating into very disturbed behavior." He stated that
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medications "could be useful" if mother decompensated "into an

agitated, impulsive, manic or paranoid state."

Subsequently, mother was referred to Dr. F. Jeffery

Schlichter for further independent psychological evaluation.

After several assessments, in a letter to the Virginia Beach

City Attorney representing DSS, Dr. Schlichter opined that

it would be appropriate and reasonable, now
that Ms. [S.] is caught up in the web of
VBDSS and the Virginia Beach Juvenile and
Domestic Relations District Court, for the
social services and legal system to return
her children to her care and help her
develop a more socially acceptable way of
parenting and managing them.

Dr. Schlichter also found that mother had not decompensated, as

Dr. Seltzer had predicted, and such speculation that mother was

at risk for decompensation and disturbed behavior proved to be

inaccurate. He observed that mother, "despite the incredible

frustration she has been experiencing daily from the loss of

contact and control of her children" had "become better

integrated and more functional." He concluded that he could not

"imagine how keeping [mother's] children away from her is

helpful to them or her." He referred mother to Ms. Linda

Schlichter, a psychotherapist, who diagnosed mother with

post-traumatic stress disorder, depression and grief resulting

from the removal of her children. Mother continued in therapy

with Ms. Schlichter for the duration of this matter.

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 In April 2001, six months after being removed from his

mother, B.B. was examined by a clinical psychologist who found

the child passive and developmentally delayed as to intellectual

functioning and speech. The child was re-evaluated six months

later, approximately a year after being placed in foster care,

and was found to have "caught up" and to have bonded with the

foster mother. The psychologist did not have enough information

to opine on the cause of the child's earlier developmental

problems.

The J&DR court reviewed the case and foster care plan in

July 2001. The goal of the plan remained to return the children

to the parent. However, signs of frustration with mother

appeared in DSS's report to the court. DSS reported "lack of

cooperation" and "limited progress" with the initial foster care

plan factors. The report also detailed that mother's visitation

with the children had been suspended by DSS due to her

"disruptive" behavior, including negative comments on the care

the children were receiving, and complaints or concerns that the

children were being physically or sexually abused.4

For the next year, mother and children remained "in the

web" of DSS, the J&DR court, the circuit court, psychologists

4
Evidence in the circuit court hearing included testimony
that mother greatly distrusted the foster care system, having
been placed in foster care as a child. She and others testified
that mother suffered from physical and sexual abuse while in the
system.
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and foster homes. As DSS became more and more suspicious of

mother, visitation between mother and the children was granted,

withdrawn, restored, and withdrawn again; custody of one of the

children was restored, and withdrawn; and the foster care plan

and attendant goal were reviewed and revised several times. The

requirements that mother needed to comply with in order to

regain custody of her children were continually changed and

increased by DSS in each successive foster care plan, despite

mother's progress toward satisfying the goals of the initial

foster case plan.

During the same time period, mother suffered severe

depression due to the removal of her children by DSS. In spite

of that, she managed to apply for jobs, hold a job for a period

of time, get married, get accepted to college, and obtain

approval to receive college financial aid. She remained in her

sister's home, engaging in the education and nurturing of her

niece. Her sister agreed to provide financial support while

mother provided cleaning, cooking and other household services.

On April 29, 2002, DSS filed a petition for a permanency

planning hearing with a goal of termination of parental rights.

A trial on the issue of termination of parental rights was held

in the J&DR court on July 29, 2002. At the conclusion of the

evidence, the J&DR judge terminated mother's residual parental

rights to all four children.

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 On appeal to the circuit court, a trial de novo was held

from October 28 to October 31, 2002. At its conclusion, the

chancellor reversed the termination of parental rights with

respect to E., C. and I., and returned them to mother. By

order, on November 4, 2002, the chancellor, finding that "the

bond developed between [B.B.] and his siblings and [B.B.] and

his Mother are not sufficiently formed," custody of B.B. was

awarded to DSS, with instructions to make permanent placement

and adoption arrangements, and mother's residual parental rights

in the baby were terminated.

II. Analysis

The termination of parental rights is a grave, drastic, and

irreversible action. When a court orders termination of

parental rights, the ties between the parent and child are

severed forever, and the parent becomes "'a legal stranger to

the child.'" Lowe v. Dept. of Public Welfare, 231 Va. 277, 280,

343 S.E.2d 70, 72 (1986) (quoting Shank v. Dept. of Social

Services, 217 Va. 506, 509, 230 S.E.2d 454, 457 (1976)).

Our prior decisions clearly indicate a
respect for the natural bond between
children and their natural parents. The
preservation of the family, and in
particular the parent-child relationship, is
an important goal for not only the parents
but also government itself. While it may be
occasionally necessary to sever the legal
relationship between parent and child, those
circumstances are rare. Statutes
terminating the legal relationship between
parent and child should be interpreted
consistently with the governmental objective
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 of preserving, when possible, the
parent-child relationship.

Weaver v. Roanoke Dept. of Human Res., 220 Va. 921, 926, 265

S.E.2d 692, 695 (1980).

Code § 16.1-283 embodies "the statutory scheme for the

. . . termination of residual parental rights in this

Commonwealth [which] . . . 'provides detailed procedures

designed to protect the rights of the parents and their child,'

balancing their interests while seeking to preserve the family."

Lecky v. Reed, 20 Va. App. 306, 311, 456 S.E.2d 538, 540 (1995)

(quoting Rader v. Montgomery County Dept. of Social Services, 5

Va. App. 523, 526, 365 S.E.2d 234, 234-36 (1988), and Kaywood v.

Halifax Dept. of Social Services, 10 Va. App. 535, 539, 394,

S.E.2d 492, 494 (1990)). Section (C)(2) provides in pertinent

part:

The residual parental rights of a parent
or parents of a child placed in foster care
as a result of court commitment, an
entrustment agreement entered into by the
parent or parents or other voluntary
relinquishment by the parent or parents 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:

* * * * * * *

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
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 reasonable and appropriate efforts of
social, medical, mental health or other
rehabilitative agencies to such end.

Code § 16.1-283. Therefore, before residual parental rights can

be terminated under Code § 16.1-283(C)(2), a court must find:

(1) by clear and convincing evidence; (2) that termination is in

the child's best interests; and, (3) that 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 the child's foster care placement,

notwithstanding the reasonable and appropriate efforts of

social, medical, mental health or other rehabilitative agencies

to such end.

We have defined clear and convincing
evidence as "that measure or degree of proof
which will produce in the mind of the trier
of facts a firm belief or conviction as to
the allegations sought to be established.
It is intermediate, being more than a mere
preponderance, but not to the extent of such
certainty as is required beyond a reasonable
doubt as in criminal cases. It does not
mean clear and unequivocal."

Gifford v. Dennis, 230 Va. 193, 198 n.1, 335 S.E.2d 371, 373 n.1

(1985) (quoting Salyer v. Salyer, 216 Va. 521, 525 n.4, 219

S.E.2d 889, 893 n.4 (1995), and Walker Agency & Aetna Cas. Co.

v. Lucas, 215 Va. 535, 540-41, 211 S.E.2d 88, 92 (1975)).

DSS was required to present clear and convincing evidence

sufficient to satisfy the requirements of Code § 16.1-283. The

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circuit court found that DSS met that standard. "A trial court,

'by definition abuses its discretion when it makes an error of

law.'" Shooltz v. Shooltz, 27 Va. App. 264, 271, 498 S.E.2d

437, 441 (1998) (quoting Koon v. United States, 518 U.S. 81, 100

(1996)). An abuse exists if the trial court makes factual

findings that are plainly wrong or without evidence to support

them. Code § 8.01-680; Goldhamer v. Cohen, 31 Va. App. 728,

734-35, 525 S.E.2d 599, 602 (2000) (citing Farley v. Farley, 9

Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)). After

considering the record as a whole, we find that the evidence

falls short of the standard of clear and convincing proof that

mother did not remedy substantially the conditions which led to

the child's foster care placement. In fact, we find nothing in

the record that supports the court's conclusions. "Conclusions

unsupported by facts are insufficient to sever for all time the

legal connection between parent and child." Ward v. Faw, 219

Va. 1120, 1125, 253 S.E.2d 658, 662 (1979).

There is no evidence that this mother physically or

sexually abused her children, abused alcohol or drugs, or

neglected the children as to feeding, clothing and maintaining

their health. Additionally, when initially contacted, and

before intervention by DSS, mother had her own apartment, a job,

and was not on public assistance. Before intervention by DSS,

neither she nor any of the children were on antidepressants.

The behavior of DSS in this case was described at hearing by
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mother's therapist as "adversarial and judgmental and almost to

the point of intimidating." The guardian ad litem argued that

the motives of DSS were "disingenuous." The trial judge

transferred the matters to Hampton because he found, with regard

to DSS that "the well's poisoned in Virginia Beach."

Here, the problems giving rise to the original foster care

placement were resolved. Before it could terminate mother's

residual parental rights, the trial court was required to find

that mother failed, "without good cause, . . . to follow through

with appropriate, available and reasonable rehabilitative

efforts" proposed by the Department of Social Services as

outlined in its initial Foster Care Service Plan. The initial

Foster Care Service Plan listed six needs that mother had to

meet to achieve the goal for the children, which was "return

home."

First, mother was to attend and participate in

psychological evaluation and individual therapy. The evidence

showed that she underwent an initial psychological evaluation on

February 10, 2001, with Dr. Seltzer, had further independent

evaluation in May and June 2001, with Dr. K. Jeffery Schlichter

and entered into continuing therapy with Ms. Linda Schlichter

beginning in June 2001.5

5
At hearing, mother's psychotherapist testified that mother
overcame depression without medication and that when mother had
been given medication (Prozac), it was "very unsuccessful and
probably set her back." In spite of that testimony, and
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 Second, mother was to obtain suitable employment in an

effort to provide financial stability in caring for the children

and herself.6 The evidence showed that mother had successfully

held a retail position for a year and was being considered for a

promotion at that place of employment before DSS intervened. In

fact, mother was also in training at a second, part-time job to

supplement her income. After the incident with the children,

mother felt it necessary to leave her employment and stay home

with her children. The evidence showed that after the children

were removed, mother fell into a deep depression, such that she

was unable to work. She did, however, go back to work for her

evidence that mother had an allergic reaction to the medication,
at the end of the hearing, the trial judge said to mother, "if
that doctor prescribes medication and you don't take it, I'll
take these children, and I will put them up for adoption. Do
you understand me?" Subsequently, the trial court order
directed mother to take medication if recommended by her
therapist. The United States Supreme Court in Sell v. United
States, 123 S. Ct. 2174, 2183 (2003) (quoting Riggins v. Nevada,
504 U.S. 127, 134, 135 (1992)), stated that "an individual has a
significant constitutionally protected liberty 'interest in
avoiding the unwanted administration of antipsychotic drugs' --
an interest that only an 'essential' or 'overriding' state
interest might overcome." Whether medication is appropriate is
between a therapist and her patient. A decision by a patient to
avoid taking unwanted medicine is not alone a basis for removal
of children or terminating parental rights. See Code
§ 16.1-283; Rader, 5 Va. App. 523, 365 S.E.2d 234 (due process
requires strict compliance with the statutory scheme for
disposition of child custody cases); Wright v. Alexandria Div.
of Soc. Serv., 16 Va. App. 821, 433 S.E.2d 500 (1993)
(explaining that due process requires that allegations of
parental unfitness be supported by at least clear and convincing
evidence).
6
Mother had an excellent work history prior to entanglement
with DSS.
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previous employer for a short time, apply for jobs, go on

interviews, and find some employment in September and October

2001, after which she continued to look for appropriate

employment. In an effort to provide stability and financial

support for herself and her family, she moved in with her

sister. While her sister worked and provided financial support,

mother provided the family with household support. Mother has

since married, and her new husband provides yet more financial

resources and healthcare benefits to the family.

Third, mother was to provide adequate furnishings for the

children, i.e., beds or mats for sleeping. According to the

evidence, there was a bed in the home, and the home was

spotlessly clean. Mother testified that she provided several,

piled-up, thick quilts for the children to sleep on. The social

worker's testimony indicated that having a bed was not a

requirement and that a child would not be removed from a home

for not having a bed.

Fourth, DSS required family therapy through the

Comprehensive Mental Health Program. Mother could not comply

with this requirement through no fault of her own. Code

§ 16.1-283(C)(2) requires DSS to make "reasonable and

appropriate efforts" to help mother remedy the conditions that

led to the children's foster care placement. At least twelve

therapists, psychologists, and social workers employed by, or

contracted by, DSS were involved in providing services to the
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children. However, over two years, DSS did not coordinate or

make any reasonable or appropriate efforts to arrange family

therapy between the children's therapists and the mother's

therapist, or set up a family therapy session. In fact, mother

testified at trial that she was instructed by the DSS social

worker assigned to the case not to tell B.B. that she was his

mother. When talking to B.B., the social worker referred to

mother as "the Nice Lady." There was evidence that the

children's therapists were contracted by DSS to provide

individual therapy only, and not family therapy. Mother's

therapist testified that she attempted to speak with most of the

children's therapists early in the process, but that she did not

have continuing contact with them because, "each of them made it

clear to me that my input really wasn't being very highly

regarded or taken into consideration." Mother's therapist also

testified that she had very little communication with DSS other

than providing progress reports to them. She also stated that

she had written letters to DSS, to which she did not receive a

response. There was no evidence that DSS provided or referred

mother to a family therapist.

Sixth, mother was to maintain the children's enrollment in

an educational program certified by the state, or to provide DSS

with proof of certification to home school the children. This

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requirement did not apply to the child at issue in this appeal

because of his age.7

Therefore, the evidence clearly shows that mother

substantially remedied, within twelve months, the conditions

that led to B.B.'s foster care placement. She complied or made

substantial efforts towards remedying each of the conditions

except those conditions over which she had no control. Because

mother met the requirements of the January 16, 2001 Foster Care

Service Plan, she achieved the program goal, which was to return

the children to her home. Code § 16.1-283(C) speaks in the

conjunctive. Therefore, subsection (C)(2) precludes termination

of parental rights when the parent has substantially remedied

the conditions that led to the child's foster care placement.

III. Conclusion

Finding that the evidence did not meet the clear and

convincing standard as required by Code § 16.1-283(C)(2), the

decision of the trial court is reversed as to termination of

residual parental rights with regard to B.B., vacated with

respect to all other matters incident to termination of parental

rights in B.B., and remanded to the circuit court for

7
Mother did, however, make efforts to immunize, get
physical check-ups and enroll the other children in school even
before the children were removed from her custody. When E. was
restored to her custody, mother took a keen interest in the
child's school assignments.
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proceedings consistent with this opinion, including a

determination on whether B.B. should remain in foster care.

Reversed, vacated and remanded.

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