Richmond Department of Social Services v. L.P.

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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