COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Clements
Argued at Alexandria, Virginia
RICHMOND DEPARTMENT OF SOCIAL SERVICES
OPINION BY
v. Record No. 1737-00-2 JUDGE JEAN HARRISON CLEMENTS
MAY 29, 2001
L.P.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Theodore J. Markow, Judge
Kate D. O'Leary, Assistant City Attorney, for
appellant.
James F. Sumpter (James F. Sumpter, P.C., on
brief), for appellee.
The Richmond Department of Social Services (Department)
appeals the order of the Circuit Court of the City of Richmond
denying the Department's petition to terminate the residual
parental rights of L.P. (mother) to her son, J., pursuant to Code
§ 16.1-283(C)(2). The trial court concluded that, although the
evidence clearly supported termination of the mother's residual
parental rights in all other respects, the mother's mental
deficiency, which prevented her from properly caring for her
child, constituted "good cause" under Code § 16.1-283(C)(2) for
her inability to timely remedy the condition that led to the
placement of her son in foster care. The Department contends the
trial court erred in reaching that conclusion. We agree and
reverse the trial court's judgment.
I. FACTS
On appeal, we view the evidence in the light most favorable
to the mother, the prevailing party below, and grant to that
evidence all reasonable inferences fairly deducible therefrom.
See Logan v. Fairfax County Dep't of Human Dev., 13 Va. App. 123,
128, 409 S.E.2d 460, 463 (1991). So viewed, the evidence
established that J. was born October 18, 1989. His mother, who
was forty-seven or forty-eight years of age at the time of the
termination hearing, signed an entrustment agreement in June 1995
granting temporary custody of J. to the Department. On June 29,
1995, J. was placed in the foster home of K.T. and has remained
in K.T.'s care since that time.
J. has attention deficit hyperactivity disorder and also
suffers from pervasive learning developmental delay. He exhibits
some autistic, schizophrenic, and psychotic behaviors as a
result. While mainstreamed into several regular classes at
school, J. continues to attend some special education classes and
still has problems with math, science, and writing. K.T. spends
a minimum of thirty minutes an evening going over his school work
with him, reinforcing what he might have missed at school or
helping him complete tasks that he failed to do at school. This
extra work has helped J. achieve some success in school.
J. has also had difficulty coping with the intrinsic
instability of the foster care environment. When faced with the
possibility of having to leave the home of K.T. to go live with
or visit relatives who expressed an interest in having custody of
him, he exhibited aggressive and disruptive behavior. At such
times, he had to be sedated with drugs in order to attend school
and, even then, still sometimes disrupted his classes. Prior to
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and after visits with his relatives, J. was withdrawn and
preoccupied at home and his schoolwork suffered, regressing as
much as six months in his studies.
Despite his developmental problems and associated special
needs, J. has, as counsel for the mother concedes, flourished
under K.T.'s care. K.T. is interested in adopting J. She loves
J. and wants to give him the permanency and stability in his life
that, in her opinion, only an adoption can bring him. She also
feels strongly that J. should continue to have a close
relationship with his mother even if he is adopted, for both J.'s
and his mother's sakes. If K.T. adopts J., she says she would
foster contact between J. and his mother, as she has during J.'s
foster care.
There is no doubt that J.'s mother also loves him and wants
to be with him. Since entrusting J. to the Department in 1995,
the mother has cooperated in the Department's various efforts to
help her remedy her problems and regain custody of her son. She
has worked with several agencies in Richmond that offer support
and services to adults with mental retardation—the Department of
Mental Health and Retardation, the Comprehensive Health
Investment Project, Richmond Behavioral Health Authority, and
Richmond Residential Services—to obtain housing and services for
herself and to attend parenting and life skills programs. In May
1998, after a stay with her sister in Atkins, Virginia "did not
work out," the mother moved into a group home in Cedar Bluff,
Virginia. Despite living some distance from J., the mother still
attempts to see him when she can and talks to him on the
telephone two or three times a week.
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The mother continues, however, to have her own special needs
and to be unable to care for her son because of her mental
retardation. Robert Goodman, J.'s current foster care worker,
testified that the decision was made by the Department not to
allow J. to join his mother at her current residence because "the
mental health people that worked with her did not feel that she
was able to care for her son" and that she "needed assistance"
herself. According to Goodman, who has worked with J. and his
mother since July 1996, the mother is still unable to cope with
J.'s special needs and his behavioral problems. For example,
Goodman testified, J. had to be returned to K.T.'s home around
1:00 a.m. one night toward the end of 1998 because the mother was
unable to handle J. during a Christmas visit.
Glenna Cordle, the mother's case manager at the group home
in Cedar Bluff, testified on behalf of the mother. She stated
that, although the mother is doing "well on her daily living
skills," she "still needs assistance in taking care of herself on
a daily basis," including help with taking her medication. While
confident that the mother could live in an apartment on her own
with the requisite assistance, Cordle had no such confidence that
the mother could properly care for a child in such an
environment.
John Trembly, the mother's case manager from 1996 through
1998 with Richmond Behavioral Health Authority, testified that,
based on his observations of the mother and her interaction with
J., the mother certainly loved and cared about J. but did not
have the "skills or cognitive ability to function adequately as a
good parent, looking out for his welfare and well-being." For
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example, the mother would not, according to Trembly, be able to
help J. with his homework because of her mental limitations.
Londella Hamilton, the mother's program counselor with
Richmond Residential Services during the same time period, also
observed visits between the mother and J. in the foster home she
found for the mother. Hamilton testified the mother was not
"able to adequately parent [J.]." The mother did not, Hamilton
testified, understand that a parent has to sometimes say "no" to
a child and make him do things he does not want to. For example,
the mother would not, according to Hamilton, make J. wear a
seatbelt when he did not want to. Likewise, according to
Hamilton, the mother was unable to understand what raising a
child entailed. While she knew a child needed to be fed, housed,
clothed, and kept safe, she did not, Hamilton opined, know "how
to go about providing those types of needs for a child."
Hamilton further testified that, based on the mother's
occasionally erratic and inappropriate behavior and her inability
without supervision and assistance to take her medicine correctly
and to clean up and maintain a safe home, the mother would never
likely be able to live unsupervised on her own, much less with a
child. Even though the mother "really loves her son," she "is
not able to care for him as a parent," Hamilton concluded. She
added, however, that she "would hate to see [the mother] left out
of [J.'s] life completely because they do have a bond."
On November 23, 1999, the Department petitioned the Juvenile
and Domestic Relations District Court of the City of Richmond to
terminate the residual parental rights of the mother and to allow
it to place J. for adoption. The petition was accompanied by a
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foster care service plan with the new goal of "adoption," the
goals of "return home" and "placement with relatives" no longer,
according to the plan, being viable alternatives. On January 24,
2000, the juvenile court terminated the residual parental rights
of the mother. That same day, the mother noted her appeal of the
juvenile court's order.
The Circuit Court of the City of Richmond heard the matter
ore tenus on April 18, 2000. At the conclusion of the hearing,
the trial court requested briefs from the parties on the issue of
"good cause" under Code § 16.1-283(C)(2). Following receipt of
those briefs, the court issued its order on June 20, 2000,
finding by clear and convincing evidence that (1) the termination
of parental rights was clearly in the child's best interests and
(2) the mother was unable to substantially remedy the condition
that led to the placement of her son in foster care within a
reasonable period of time, despite the Department's provision of
reasonable and appropriate services, and likely would never be
able to do so. The court ruled, however, that it could not
terminate the mother's parental rights under Code
§ 16.1-283(C)(2) because, even though the other requisite
conditions set forth in that section were proven by clear and
convincing evidence, the mother's inability to remedy the
condition that led to her son's placement in foster care was with
"good cause," namely, the mother's mental retardation. The
mother could do no more to resolve her intellectual limitations
and regain custody of her child, the court found, than she had.
On July 1, 2000, the Department noted its appeal of the
trial court's final order of June 20, 2000. The parties having
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submitted their briefs and presented their arguments, the case is
now before us for resolution. 1
II. ANALYSIS
The Department contends the trial court erroneously concluded
that the mother's mental deficiency constituted "good cause" under
Code § 16.1-283(C)(2) for her failure to timely remedy the
conditions that led to J.'s placement in foster care. We agree
with the Department's contention.
The best interest of the child is the paramount consideration
in cases involving the termination of a parent's residual parental
rights. Logan v. Fairfax County Dep't of Human Dev., 13 Va. App.
123, 128, 409 S.E.2d 460, 463 (1991). Nevertheless, "'the rights
of parents may not be lightly severed but are to be respected if
at all consonant with the best interests of the child.'" Ward v.
Faw, 219 Va. 1120, 1124, 253 S.E.2d 658, 661 (1979) (quoting
Malpass v. Morgan, 213 Va. 393, 400, 192 S.E.2d 794, 799 (1972)).
In considering the matter before us, we must have
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. . . . Statutes
terminating the legal relationship between
parent and child should be interpreted
consistently with the governmental objective
of preserving, when possible, the
parent-child relationship.
1
Inexplicably, the guardian ad litem for the child did not
file a brief or appear for argument on behalf of the child in
this case on appeal, despite having been given proper notice of
this appeal and having been appointed by the trial court for the
specific purpose of representing the child in this appeal.
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Weaver v. Roanoke Dep't of Human Res., 220 Va. 921, 926, 265
S.E.2d 692, 695 (1980). "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. Dep't of Pub. Welfare of City of
Richmond, 231 Va. 277, 280, 343 S.E.2d 70, 72 (1986) (quoting
Shank v. Dep't of Soc. Servs., 217 Va. 506, 509, 230 S.E.2d 454,
457 (1976)).
Code § 16.1-283 establishes the procedures and grounds for
the termination of residual parental rights. Code
§ 16.1-283(C)(2) provides, in pertinent part, that
[t]he residual parental rights of a parent
. . . of a child placed in foster care as a
result of . . . an entrustment agreement
entered 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
. . . [t]he parent . . ., without good cause,
[has] 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.
(Emphasis added.)
Here, J.'s mother entrusted care of J. to the Department in
1995 because she was unable to properly care for him due to her
mental problems. J. has been in foster care ever since, almost
half of his life. He has been with the same foster care family
during that time and has thrived under the care of his foster
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mother, with whom he has established strong bonds. J.'s foster
mother wishes to adopt him and bring stability and permanency to
his life. J.'s mother continues, despite the passage of more than
five years, to have special needs because of her mental
retardation. She will, as the trial court properly inferred from
the evidence, likely never be able to adequately care for J. and
regain custody of him.
There is no question, on the facts of this case, that
termination of the mother's residual parental rights so that J.
can be adopted is, as the trial court concluded, in J.'s best
interests. See Kaywood v. Halifax County Dep't of Soc. Servs., 10
Va. App. 535, 540, 394 S.E.2d 492, 495 (1990) (noting that having
to wait a long time to find out when, or even if, a parent can
resume his parenting duties is not in child's best interests).
Likewise, the record clearly supports the trial court's
determination that the mother was unable, due to her continuing
and likely permanent mental deficiency, to substantially remedy
within a reasonable period of time those conditions that led to
J.'s placement in foster care, notwithstanding the reasonable and
appropriate efforts of the Department and other agencies to that
end.
Nevertheless, the trial court declined to terminate the
mother's residual parental rights under Code § 16.1-283(C)(2)
because, in the court's opinion, the mother's inability to remedy
the condition that led to J.'s foster care placement was not
without "good cause," as required by the statute. According to
the trial court, the mother's mental retardation constituted
"good cause."
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The resolution of this case rests upon the single issue of
whether a parent's mental deficiency constitutes "good cause"
under Code § 16.1-283(C)(2), where that mental deficiency
disables, likely permanently, the parent from properly caring for
and regaining custody of his or her child who has been placed in
foster care. In other words, we must decide whether a mental
deficiency that prevents a parent from discharging his or her
parental responsibilities, when that deficiency cannot be remedied
within a reasonable time, constitutes a valid legal excuse under
Code § 16.1-283(C)(2) for that parent's inability to timely cure
the circumstances that led to the child's foster care placement.
This issue is one of first impression in Virginia.
In determining whether such a mental disability is
encompassed in the words "good cause," as used in Code
§ 16.1-283(C)(2), we are guided by the following well-settled
principles of statutory construction:
In construing a statute the court should
seek to discover the intention of the
legislature, as ascertained from the act
itself when read in the light of other
statutes relating to the same subject
matter, and in the light of the reasons
which led to the passage of the act and the
evils which it was intended to cure. If
possible, the language used should always be
so construed as to give effect to the
statute.
* * * * * * *
. . . "It is to be inferred that a code
of statutes relating to one subject was
governed by one spirit and policy, and was
intended to be consistent and harmonious in
its several parts and provisions. It is,
therefore, an established rule of law that
all acts in pari matria are to be taken
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together, as if they were one law; and they
are directed to be compared in the
construction of statutes, because they are
considered as framed under one system, and
having one object in view."
Stanley v. Tomlin, 143 Va. 187, 195, 129 S.E. 379, 382 (1925)
(quoting Fox's Admr. v. Commonwealth, 57 Va. (16 Gratt.) 1, 10
(1860)).
Although they address somewhat different circumstances, Code
§§ 16.1-283(B)(2) and 16.1-283(C)(2) clearly relate to the same
subject matter, have the same basic objectives, are framed under a
single system, and, thus, are "governed by one spirit and policy."
Stanley, 143 Va. at 195, 129 S.E. at 382. Code § 16.1-283(B)(2)
provides, in pertinent part, that
[t]he residual parental rights of a parent
. . . of a child found by the court to be
neglected or abused and placed in foster care
as a result of . . . an entrustment agreement
entered 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
. . . [i]t 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 . . . within a
reasonable period of time.
Code § 16.1-283(B)(2) further provides that proof of the following
condition constitutes prima facie evidence that "[i]t is not
reasonably likely that the conditions that resulted in [the]
neglect or abuse [of the child] can be substantially corrected or
eliminated so as to allow the child's safe return to his parent
. . . within a reasonable period of time":
The parent . . . [is] suffering from a mental
or emotional illness or mental deficiency of
such severity that there is no reasonable
expectation that such parent will be able to
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undertake responsibility for the care needed
by the child in accordance with his age and
stage of development . . . .
We do not believe, in comparing Code §§ 16.1-283(B)(2) and
16.1-283(C)(2), that the legislature intended, in enacting those
similar statutes, that a parent's mental deficiency akin to the
mother's mental deficiency in the case before us constitutes both
a reason to permit termination of parental rights under one
statute and a reason to preclude termination of parental rights
under the other. Indeed, we would be sanctioning such obvious
contradiction were we to conclude that a parent's mental
deficiency that prevents her from caring for her child constitutes
"good cause" under Code § 16.1-283(C)(2).
Moreover, "the best interests of the child must be the
primary concern of the court." Stanley v. Fairfax County Dep't of
Soc. Servs., 242 Va. 60, 63, 405 S.E.2d 621, 623 (1991). The
purpose of Code § 16.1-283(C)(2) is to ensure, if possible, that
the best interests of the child are achieved by "protect[ing] the
family unit and attendant rights of both parents and child, while
assuring resolution of the parent-child relationship without
interminable delay." Lecky v. Reed, 20 Va. App. 306, 312, 456
S.E.2d 538, 540 (1995). "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, 10 Va. App. at 540, 394 S.E.2d
at 495.
In concluding in Lecky that the young age of the mother did
not constitute "good cause" under Code § 16.1-283(C)(2), we noted
that
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age of the parent . . . is not a circumstance
which prevails over the best interests of the
child. Nothing in this record . . . suggests
that the mere passage of time would resolve
her difficulties. Thus, further delay would
prolong [the child's] familial instability
without the promise of benefit to him, a
result clearly contrary to the child's best
interests. Under such circumstances,
mother's age does not alone constitute good
cause to excuse her failure to resolve the
conditions which prompted [the child's]
foster care in accordance with statute.
20 Va. App. at 312, 456 S.E.2d at 541.
The same can be said for the mother's mental deficiency in
this case. Nothing in the record suggests that the mother will
ever be able to assume responsibility for the care of her child.
Waiting indefinitely to find out if the mother might someday
remedy the conditions that resulted in J.'s foster care placement
only prolongs the lack of stability and permanency in J.'s life,
with no guarantee or even reasonable likelihood that the mother
will ever be able to adequately care for J. in the future. Thus,
like the mother's age in Lecky, the mother's mental deficiency in
this case does not prevail over the child's best interests.
For these reasons, we conclude that a parent's mental
deficiency that is of such severity that there is no reasonable
expectation that such parent will be able within a reasonable
period of time befitting the child's best interests to undertake
responsibility for the care needed by the child in accordance with
the child's age and stage of development does not constitute "good
cause" under Code § 16.1-283(C)(2). Hence, we hold that the
present mother's inability to remedy the conditions that led to
J.'s placement in foster care was without "good cause." The trial
court's determination to the contrary was, therefore, erroneous.
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Accordingly, we reverse the judgment of the trial court and
order the residual parental rights of the mother terminated in
accordance with Code § 16.1-283(C)(2).
Reversed.
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