COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and
Senior Judge Coleman
Argued at Salem, Virginia
L.G.
OPINION BY
v. Record No. 2443-02-3 JUDGE SAM W. COLEMAN III
JUNE 10, 2003
AMHERST COUNTY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF AMHERST COUNTY
J. Michael Gamble, Judge
Herbert E. Taylor, III, for appellant.
J. Thompson Shrader (Jennifer R. Tuggle;
J. Thompson Shrader & Associates, P.C., on
brief), for appellee.
Ruth B. Layne (De Bruin & Layne, P.C., on
brief), Guardian ad litem for L.G.
Grady W. Donaldson, Jr. (Schenkel &
Donaldson, P.C., on brief), Guardian ad
litem for the child.
L.G. appeals a decision of the circuit court (the trial
court) terminating her parental rights to her daughter, K.,
pursuant to Code § 16.1-283(C)(2). The court found (1) that
L.G. was unwilling or unable, without good cause, within a
reasonable period of time not to exceed twelve months from the
date her daughter was placed in foster care to remedy
substantially the conditions that led to the foster care
placement and (2) that termination was in the child's best
interests. We conclude that the trial court erred by
considering only L.G.'s efforts during the twelve-month period
following the foster care placement in November 1999 through
November 2000, and by not considering what progress, if any,
L.G. had made toward remedying those conditions during the
twenty-one-month time period between November 2000 and the
circuit court hearing in August 2002. Accordingly, we reverse
the decision of the trial court and remand for further
consideration in accordance with this opinion.
BACKGROUND
According to well established principles, we view the
evidence in the light most favorable to the prevailing party,
granting to the evidence all reasonable inferences fairly
deducible therefrom. Martin v. Pittsylvania County Dep't of Soc.
Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986).
L.G. was born in June 1985 and resided with various family
members, including her grandmother and mother, until she was
twelve or thirteen years old. She reported being raped on three
different occasions beginning when she was ten years old. On the
third occasion, when L.G. was twelve-and-one-half years old, she
was raped by her aunt's boyfriend and four of his friends, one of
whom is the father of L.G.'s daughter K. The Amherst County
Department of Social Services (DSS) removed L.G. from her mother's
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custody, and, in December 1998 when L.G. was thirteen years old,
she gave birth to K.
L.G. and K. resided in several foster homes from December
1998 until June 1999. During that time, L.G. received parenting
classes and counseling related to sexual abuse and neglect. In
June 1999, DSS placed L.G. and K. in L.G.'s mother's home where
L.G. received some in-home services. While there, L.G. continued
to be sexually active and did not comply with the rules
established by DSS. In September 1999, L.G. notified DSS that she
was pregnant again. L.G. elected to terminate that pregnancy. In
November 1999, L.G. stole her mother's car and was in a traffic
accident while K. was seated in the backseat of the car.
In November 1999, and as a result of these events, DSS
obtained custody of K. based on a finding of child neglect, and
DSS placed both L.G. and K. with a foster family. L.G.
experienced problems with the foster family, and, in January 2000,
DSS placed L.G. with the Virginia Baptist Children's Emergency
Shelter in Salem, but left K. with the foster family.
After three months in Salem and due to additional problems
there, DSS moved L.G. to the Presbyterian Home in Lynchburg. L.G.
ran away from the Presbyterian Home several times, once staying
away for over two months. In November 2000, DSS placed L.G. at
Tekoa, a residential facility in Christiansburg. When L.G. first
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arrived there, she exhibited oppositional behavior and she also
ran away from the facility.
On November 14, 2000, DSS filed the petition to terminate
L.G.'s parental rights.
Starting in January 2001, the foster family brought K. to
Tekoa to visit with L.G. every other Sunday afternoon. However,
because L.G. ran away from the facility, DSS suspended her
visitation with the child due to safety concerns. L.G. returned
to Tekoa in March 2001. Visitation with K. resumed for a period
of time, but DSS again suspended the visitation in January 2002
when the juvenile and domestic relations district court (JDR
court) terminated L.G.'s parental rights to K. L.G. appealed the
JDR court termination order to the trial court.
On August 12, 2002, the trial court held a de novo hearing on
the petition to terminate L.G.'s parental rights to K. At the
time of the hearing, L.G. was seventeen years old. Several
witnesses testified about L.G.'s progress since March 2001 when
she returned to the program at Tekoa. Mark Bond, who taught L.G.
English and history at Tekoa, stated that, although L.G. has a
learning disability and struggles with educational endeavors, she
works hard to compensate, is often on the A-B honor roll, and will
receive a high school diploma. Following graduation from high
school, L.G. plans to attend a community college and attain a
career in education or as a parole officer.
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Bond stated that L.G. has focused her work and her goals
toward having K. returned to her. L.G. set goals to save money or
to spend her money on clothes or toys for K. L.G. has "remained
adamant that she wants to be reunited with K. She has set a goal
to be a wonderful mother for K. and to get her college degree and
to be there for [K]." All of her goals are oriented toward K.,
who is a "priority" in L.G.'s life.
Cindy Fairchild, who has counseled L.G. while she has been at
Tekoa, testified that L.G. "has been committed to working on her
issues." Fairchild testified that L.G. did not receive sufficient
stimulation in her early childhood and, as a result, that she has
several "deficits." However, L.G. compensates for her deficits
through hard work and determination and has "made incredible
progress in all areas and settings," including social skills and
psychological issues. Fairchild stated that in her twenty years
of experience with adolescents, L.G. "has made the most remarkable
progress." "It seems like a light went on." L.G. has "excelled"
in school and in her employment at a fast food restaurant, where
she is one of the most admired employees. L.G. is also revered by
her peers, "has excellent boundaries," and connects well with
adults. L.G. "does a tremendous job of long and short term goal
setting and planning." Fairchild described L.G. as "polite and a
caring, sensitive, intelligent and remarkable young woman."
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Fairchild opined that L.G. is "strongly motivated" by K. and
wants to be reunited with her. Fairchild believes K.'s best
interests would be served by having a parent-child relationship
with L.G. Fairchild opined that L.G. is ready to have K. live
with her and that she is capable of attending classes, working,
and taking care of K. Fairchild also testified that L.G.'s former
counselor shares in Fairchild's assessment of L.G.
L.G. testified and acknowledged that she has made mistakes in
the past but stated that she has learned how to be responsible and
respectful. She testified that she is committed to changing her
life and that K. is her most important concern.
At the time of the hearing, L.G. was scheduled to be
discharged from Tekoa in June 2003 and to go into independent
living or a foster home.
The trial court ruled "that the fact that . . . L.G. has
recently been doing much better was not relevant to the case
. . . . [And, the fact that she] had failed to make substantial
progress which was required by the child's foster care plan within
the time limits or goals as set forth in that plan" established
"by clear and convincing evidence that it is in the best interest
of [K.] . . . to terminate the parental rights of . . . L.G."
pursuant to Code § 16.1-283(C)(2). The court expressly found that
DSS did not establish by clear and convincing evidence a cause to
terminate pursuant to Code § 16.1-283(B)(2), which provides for
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termination if the abuse or neglect has continued and presents a
serious and substantial threat to the life, health or development
of the child and it is not reasonably likely that the conditions
could be substantially corrected or eliminated within a reasonable
time.
ANALYSIS
Code § 16.1-283(C) speaks in the
conjunctive. The court must find, upon
clear and convincing evidence, (1) that
termination is in the best interests of the
child and (2) that
"[t]he 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. . . ."
Roanoke City Dep't of Soc. Servs. v. Heide, 35 Va. App. 328,
335-36, 544 S.E.2d 890, 893 (2001) (quoting Code § 16.1-283(C)).
The twelve-month time limit established by Code
§ 16.1-283(C)(2) was designed to prevent an indeterminate state
of foster care "drift" and to encourage timeliness by the courts
and social services in addressing the circumstances that
resulted in the foster care placement. "This provision protects
the family unit and attendant rights of both parents and child,
while assuring resolution of the parent/child relationship
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without interminable delay." Lecky v. Reed, 20 Va. App. 306,
312, 456 S.E.2d 538, 540 (1995). The legislation established a
reasonably presumptive time frame of twelve months for parents
to receive rehabilitative services to enable them to correct the
conditions that led to foster care placement. "The statute
clearly contemplates that efforts to resolve the 'conditions'
relevant to termination are constrained by time." Id. If the
parent fails to substantially remedy those conditions within
twelve months the court may act to prevent the child from
lingering in foster care. "Absent 'good cause,' a parent or
parents receiving the 'reasonable and appropriate' services of
'rehabilitative agencies' must 'remedy substantially' the
'conditions which led to . . . foster care' of the child in a
'reasonable period not to exceed twelve months.'" Id.
The time limit does not, however, temporally restrict the
trial court's consideration to events that occurred between the
parent and child only during that discrete twelve-month time
period to the exclusion of what may have occurred before and
after those dates. See Heide, 35 Va. App. at 337, 544 S.E.2d at
894. Such a construction of the statute
would deny the fact finder the opportunity
to evaluate the present best interests of
the child. The trial court may discount the
parent's current "progress" if the best
interests of the child would be served by
termination. However, . . . the trial court
may determine that a parent's delayed, but
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nonetheless substantial, progress may
overcome the time delay. We will not
deprive the trial court of the opportunity
to weigh the rights of the parents and the
best interests of the child.
Id. (emphasis added).
Here, K. was placed in foster care in November 1999 when
she was one year old. Thus, the twelve-month time period
provided by Code § 16.1-283(C)(2), within which the parent is
expected to remedy substantially the conditions that led to the
foster care placement, elapsed in November 2000. The history of
this case shows that from the date of K.'s birth in December of
1998, at which time L.G. was thirteen years old, until November
2000, L.G. continued to exhibit irresponsible and unstable
behavior and a total lack of commitment to providing acceptable
parenting for K. Throughout this time period, L.G. was in
successive foster care homes or facilities due either to her
unacceptable behavior, or problems with her caretakers, or a
combination thereof. L.G. was raped several times before she was
thirteen years old and after DSS intervened and placed her in
relatives' homes. She later became sexually active and became
pregnant again. In each of the foster care settings, she failed
to adhere to DSS's rules and ran away on at least six occasions
in the six months between July 8, 2000, through January 28,
2001. Clearly, during the first twelve-month period that K. was
removed from L.G.'s custody and placed in separate foster care,
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L.G. did little or nothing to remedy the conditions that led to
and caused the abuse or neglect which led to the separation in
the first instance.
However, based upon the evidence before the JDR court in
September 2001 and the circuit court in August 2002, beginning
around November 2000, while at Tekoa and when L.G. was fifteen
years old, L.G. made tremendous progress in her education, social
skills, and in coming to terms with her abusive past and related
issues. At the time of the hearing, and for twenty-one months
before that date, L.G. had made significant improvements in her
education and life skills; she had either substantially addressed
or resolved many of her psychological issues; and she had made
considerable progress toward establishing stability in her life.
According to the testimony of several of her counselors, L.G. has
made remarkable changes in her life and has matured into a
responsible young adult. One of the counselors who was familiar
with L.G.'s experience at Tekoa testified that she believed L.G.
is ready to resume a parental role in K.'s life. The counselor
also opined that it would be in the best interests of both K.
and L.G. that L.G.'s parental rights not be terminated. The
guardian ad litem for L.G. filed a brief in support of L.G.'s
position that the trial court erred in terminating her parental
rights.
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Nevertheless, the trial court determined this evidence was
irrelevant and did not consider it in determining whether L.G.
had substantially remedied the conditions which led to or
required continuation of the child's foster care placement and
whether termination of the parental relationship was in the
child's best interest. Given L.G.'s age and background, in
particular the sexual abuse she experienced while living with
family members and her subsequent placement in ten foster homes
or residential programs over a two-year period, had the trial
court considered this evidence it may well have concluded either
that (1) good cause existed for L.G.'s not having corrected the
conditions within the statutory twelve-month time period, and/or
(2) that termination was no longer in the best interests of K.
or L.G. because L.G. had substantially remedied many of the
conditions that led to the foster care placement.
Because the trial court did not consider significant
relevant evidence concerning whether, at the time of the
hearing, L.G. had made substantial progress in correcting the
conditions that led to the foster care placement and whether
termination of L.G.'s parental rights was in K.'s present best
interests, we reverse the trial court's determination and remand
the matter to the trial court to consider L.G.'s progress, not
only during the twenty-one-month time period prior to the August
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2002 trial court hearing but also through the time of the remand
hearing.
Reversed and remanded.
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