Roanoke City Department of Social Services v. Heide

COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia

ROANOKE CITY DEPARTMENT
OF SOCIAL SERVICES
OPINION BY
v. Record No. 1157-00-3 JUDGE ROBERT P. FRANK
APRIL 24, 2001
FLOYD ALLEN HEIDE, II

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Robert P. Doherty, Jr., Judge

Allen T. Wilson, Assistant City Attorney
(William M. Hackworth, City Attorney, on
brief), for appellant.

John H. Kennett, Jr., for appellee.

Roanoke City Department of Social Services (DSS) appeals the

decision of the trial court denying DSS's petition to terminate

the residual parental rights of Floyd Allen Heide, II, (father).

Finding no error, we affirm the trial court's decision.

I. BACKGROUND

On January 11, 1999, the Juvenile and Domestic Relations

District Court for the City of Roanoke (JDR court) approved the

foster care plans requesting a change of goal to adoption for

Kescha Lynn Heide and Floyd Allen Heide, III. On January 19,

1999, DSS filed petitions, pursuant to Code § 16.1-283(C)(2),

with the JDR court requesting the termination of the residual

parental rights of father to Kescha Lynn Heide and Floyd Allen

Heide, III.
 On October 22, 1999, the JDR court denied the petitions

filed by DSS. DSS timely appealed the JDR court's decision to

the Circuit Court for the City of Roanoke (trial court). On

February 1, 2000, the parties presented evidence and the trial

court denied the termination petitions, stating:

Had this case got into Court the next
month after the J & D Court decision, then
every single thing that the Department of
Social Services has presented would be just
as clear as could be, and terminating
parental rights would be done just about as
fast as I could find a rubber stamp to do it,
but during that delay for some particular
reason, I don't know what it is, the father
has made enough changes to pull himself up
above that level. . . .
From what I have heard thus far, I am
just plain not willing to cut off all
parental rights. Six months or a year ago, I
would have done it in a flash, but the delay
it took to get this thing up and the way he
has pulled himself up, I am not willing to do
it.

In its order entered May 5, 2000, the trial court found:

Further, based only on the evidence
presented by DSS, and excluding all
consideration of the limited testimony of the
children's father, the Court found that DSS
had not born [sic] its burden of proof by
clear and convincing evidence that
termination of the father's parental rights
were in the best interest of the children, or
that the father had failed to communicate or
visit with the children, or that the father
had failed to meet the goals that were set
for him by stopping his consumption of
alcohol, by failing to get steady full time
employment, by failing to pay his bills, by
failing to complete parenting classes or by
failing to establish an appropriate, clean
and stable home environment in which to raise
the children. The failure of this evidence
was that it ended with respect to the
father's situation in January, 1999. That
was 13 months prior to the de novo hearing on
the petitions to terminate the parental
rights of the father. There was no evidence

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 as to whether the father had substantially
remedied the conditions which led to the
foster care placement of the children since
January, 1999. The Court was not presented
with any evidence that it was in the best
interest of the children to terminate their
parental rights at the time of the de novo
hearing. Evidence was not presented to
overcome the presumption that the best
interests of the children would be served by
not separating them permanently from their
natural parents.

DSS first became involved with Kescha Lynn Heide in February

1996, when Katye Hale, a DSS prevention services worker, received

a services referral from a local hospital. The hospital was

concerned about the parental abilities of Kescha's parents,

father and Tammy Lynn Cook. From the beginning, Hale's concerns

were to educate the parents to improve their parenting skills,

improve the family's housing, budget the family's income, and

address father's reported alcoholism. There also were concerns

about father's judgment, personal hygiene, general child care

knowledge, and ability to follow instructions.
Over a period of years, DSS referred father to a number of

alcohol rehabilitation programs. He never completed any of the

programs.

In September 1996, Hale investigated a protective services

complaint involving a cigarette burn on Kescha's forehead.

Father and Cook could not explain how the child was burned. It

was never clear what happened, and the complaint was founded for

physical neglect.

On October 7, 1996, the JDR court held a review hearing and

placed Kescha in the custody of DSS. Crystal Brake was the

caseworker when Kescha came into foster care.

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 In February 1997, the JDR court returned Kescha to father's

custody under specific conditions, including his completion of

substance abuse treatment. On February 15, 1997, Kescha came

back into foster care through an entrustment agreement signed by

father. Kescha has remained in foster care since that time.

Floyd Allen Heide, III, ("Allen") was born on April 8, 1997.

Immediately following Allen's birth, DSS filed a request for a

protective order with the JDR court. The protective order,

entered on May 1, 1997, stated, in part, that father and Cook

were to cooperate in the provision of reasonable services or

programs designed to protect Allen's life, health, and normal

development.
In May 1998, DSS received a complaint stating father had

been arrested for contributing to the delinquency of a minor in

association with driving while intoxicated with Allen in his

vehicle. Allen was removed from his parents' custody at that

time and placed in foster care in the same home as Kescha.

At the time Allen was placed in foster care, father had not

followed through with the services recommended by DSS. Father

was minimizing his alcoholism, but on May 20, 1998, when he was

released from jail, he entered a detox program. He left the

program on May 24, 1998. The staff at the detox program

recommended that father enter PCU, an intensive in-patient

substance abuse treatment program. He entered PCU on August 12,

1998 and was discharged on September 14, 1998.

On September 16, 1998, the JDR court ordered father to

successfully complete the Oxford House Program. Father told

Brake he was attending all of his group sessions and living at

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Oxford House. On December 29, 1998, father admitted he lied to

Brake about living at Oxford House, stating that he again was

residing with Cook. Brake learned that father had been asked to

leave Oxford House after he continued to drink alcohol. Father's

case was closed and he was not participating in any counseling.

His last group counseling session was on November 4, 1998, and

his last individual counseling session was October 12, 1998.

Father only participated in five sessions of what was to be a

twenty-six week program.

On January 11, 1999, the foster care plan goal was changed

to adoption. At the time the goal was changed, father had not

fully completed the services offered by DSS. Kescha had been in

foster care for two and one-half years, and Allen had been in

foster care for eight months. William Bailey, Foster Care

supervisor for DSS, testified that once the foster care plan goal

changed to adoption, the focus shifted from family reunification

to a focus on placement for adoption. However, DSS did provide

visitation for the parents during this period.

Father only became serious about his substance abuse

treatment after the foster care plan goal was changed to

adoption. Father returned to individual counseling on January

18, 1999, and group counseling on February 10, 1999.

DSS was aware that following the goal change, father had

made progress in addressing DSS's concerns. Bailey testified

that DSS would not consider changing the goal from adoption

because too much time had passed and the children had bonded with

their foster parents.

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 After the goal change, father completed substance abuse

counseling at Blue Ridge Community Services. He has worked at

the Hotel Roanoke for approximately one year and is a "good

employee." Father invited a social worker to visit and

investigate his house but DSS declined to do so because it no

longer provided services to him. Father testified he attends

three Alcohol Anonymous meetings per week, regularly takes

antabuse, and has not had a drink since his arrest in May 1998. 1

II. ANALYSIS
DSS contends the trial court applied the wrong statutory

standard in requiring it to provide continuing services to father

after the date the petitions were filed to terminate father's

parental rights. DSS misreads the trial court's decision.

The trial court did not require DSS to provide post-petition

services. Rather, the trial court found that DSS failed to meet

its burden of proof to show that father had not remedied the

conditions that led to foster care placement after the filing of

the petitions in January 1999. 2 The evidence established that

1
DSS contends, on appeal, that it was not given the
opportunity to challenge father's "progress" on
cross-examination because the court abruptly ended the
proceeding during father's direct examination. Because DSS did
not object to the court's termination of the proceeding at
trial, we will not consider that issue on appeal. Rule 5A:18.
2
Section 16.1-283(C) states:

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

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the best interests of the child and that:

1. The parent or parents have, without
good cause, failed to maintain continuing
contact with and to provide or substantially
plan for the future of the child for a
period of six months after the child's
placement in foster care notwithstanding the
reasonable and appropriate efforts of
social, medical, mental health or other
rehabilitative agencies to communicate with
the parent or parents and to strengthen the
parent-child relationship. Proof that the
parent or parents have failed without good
cause to communicate on a continuing and
planned basis with the child for a period of
six months shall constitute prima facie
evidence of this condition; or

2. 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
reasonable and appropriate efforts of
social, medical, mental health or other
rehabilitative agencies to such end. Proof
that the parent or parents, without good
cause, have failed or been unable to make
substantial progress towards elimination of
the conditions which led to or required
continuation of the child's foster care
placement in accordance with their
obligations under and within the time limits
or goals set forth in a foster care plan
filed with the court or any other plan
jointly designed and agreed to by the parent
or parents and a public or private social,
medical, mental health or other
rehabilitative agency shall constitute prima
facie evidence of this condition. The court
shall take into consideration the prior
efforts of such agencies to rehabilitate the
parent or parents prior to the placement of
the child in foster care.

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father completed substance abuse treatment and maintained steady

employment. The trial court found that "[t]he court was not

presented with any evidence that it was in the best interests of

the children to terminate their parental rights at the time of

the de novo hearing."

Consistent with its first contention, DSS further contends

that under Code § 16.1-283(C), father had a finite period of time

to "make substantial progress towards elimination of the

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

in accordance with their obligations under and within the time

limits or goals set forth in a foster care plan filed with the

court . . . ." Code § 16.1-283(C)(2). DSS argues that under

Code § 16.1-283(C)(2), the parent has 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 . . . ." Essentially, DSS argues that the statute

mandates a twelve month cut-off beyond which a parent's efforts

to remedy the conditions are not relevant. We disagree.

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. . . .

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Code § 16.1-283(C).

DSS's argument only focuses on the second prong of Code

§ 16.1-263(C).

Here, the trial court found that DSS had not borne its

burden to prove that termination was in the children's best

interests at the time of the de novo hearing. The trial court

found that father had "pulled himself up." We find the evidence

supports the trial court's findings.

"On review, '[a] trial court is presumed to have thoroughly

weighed all the evidence, considered the statutory requirements,

and made its determination based on the child's best interests.'"

Logan v. Fairfax County Dep't of Human Dev., 13 Va. App. 123,

128, 409 S.E.2d 460, 463 (1991) (citations omitted). Where the

trial court hears the evidence ore tenus, its decision is

entitled to great weight and will not be disturbed on appeal

unless plainly wrong or without evidence to support it. See Lowe

v. Dep't of Pub. Welfare, 231 Va. 277, 282, 343 S.E.2d 70, 73

(1986) (citation omitted).
In Lecky v. Reed, 20 Va. App. 306, 456 S.E.2d 538 (1995),

the trial court found that termination would be in the best

interests of the child and that the mother had been "'unwilling

and unable to remedy substantially the conditions which led to

the foster care placement . . . .'" Id. at 310, 456 S.E.2d at

540. Nevertheless, the trial court found that the mother's young

age, fourteen, constituted "good cause" under the statute and

denied termination. Id. at 310-11, 456 S.E.2d at 540. In

reviewing the decision of the trial court, we held:

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 The statute clearly contemplates that
efforts to resolve the "conditions" relevant
to termination are constrained by time. Code
§ 16.1-283(C)(2). 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. This provision
protects the family unit and attendant rights
of both parents and child, while assuring
resolution of the parent/child relationship
without interminable delay. "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 . . . responsibilities." Kaywood[v.
Halifax County Dep't of Social Servs.], 10
Va. App. [535,] 540, 394 S.E.2d [492,] 495
[(1990)].

Here, the record clearly supports the
trial court's determination that (1)
termination was in [the child's] best
interests, and (2) that mother had been
either unwilling or unable to remedy those
conditions which led to [the child's]
placement in foster care within twelve
months, notwithstanding the significant
efforts of DSS. Accordingly, these
requirements of Code § 16.1-283(C)
indispensable to termination of a mother's
parental rights were satisfied.
Nevertheless, the court declined to terminate
because mother's "age" provided "good
cause" . . . .

Id. at 312, 456 S.E.2d at 540-41.

In Lecky, the issue on appeal was not the best interests of

the child; rather we only addressed the time constraints

contained in Code § 16.1-283(C).

In this case, DSS's 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, as in the instant case,

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the trial court may determine that a parent's delayed, but

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.

"When addressing matters concerning a child, including the

termination of a parent's residual parental rights, the paramount

consideration of a trial court is the child's best interests."

Logan, 13 Va. App. at 128, 409 S.E.2d at 463 (citing Toombs v.

Lynchburg Div. of Soc. Servs., 223 Va. 225, 230, 288 S.E.2d 405,

407-08 (1982); Farley v. Farley, 9 Va. App. 326, 329, 387 S.E.2d

794, 796 (1990)). "Code § 16.1-283 embodies '[t]he statutory

scheme for the . . . termination of residual parental rights in

this Commonwealth.'" Lecky, 20 Va. App. at 311, 456 S.E.2d at

540 (quoting Rader v. Montgomery County Dep't of Social Servs., 5

Va. App. 523, 526, 365 S.E.2d 234, 235 (1988)). "'In matters of

a child's welfare, trial courts are vested with broad discretion

in making the decisions necessary to guard and to foster a

child's best interests.'" Logan, 13 Va. App. at 128, 409 S.E.2d
at 463 (quoting Farley, 9 Va. App. at 328, 387 S.E.2d at 795).

"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. (quoting Peple v. Peple, 5

Va. App. 414, 422, 364 S.E.2d 232, 237 (1988)).

As we stated in Lecky, "'[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 . . . responsibilities.'" Lecky, 20 Va. App. at 312,

456 S.E.2d at 540 (quoting Kaywood, 10 Va. App. at 540, 394

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S.E.2d at 495). However, under the facts of this case, when the

trial court heard the evidence and determined it would not be in

the best interests of the children to terminate father's residual

parental rights, we cannot say the trial court abused its

discretion. Therefore, for these reasons, we affirm the decision

of the trial court.

Affirmed.

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