Deborah Porterfield v. Roanoke City Department of Social Services

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Haley and Senior Judge Coleman

DEBORAH PORTERFIELD
MEMORANDUM OPINION*
v. Record No. 2156-06-3 PER CURIAM
DECEMBER 12, 2006
ROANOKE CITY DEPARTMENT
OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Charles N. Dorsey, Judge

(Scott R. Geddes; Scott R. Geddes, P.C., on brief), for appellant.
Appellant submitting on brief.

(William M. Hackworth, City Attorney; Heather P. Ferguson,
Assistant City Attorney, on brief), for appellee. Appellee
submitting on brief.

(Ellen S. Weinman, on brief), Guardian ad litem for the infant
child. Guardian ad litem submitting on brief.

Deborah Porterfield contends the trial court erred in terminating her parental rights to her

minor child. For the reasons stated, we affirm the trial court’s decision.

Background

We view the evidence in the light most favorable to the prevailing party below and grant

to it 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, 462 (1991). Before the child came into the

custody of the Roanoke City Department of Social Services on November 11, 2004, he was in

the custody of Dwayne Farmer, who was living with the child’s mother. Farmer is not the

child’s biological father but is the father of the mother’s two girls. Farmer indicated he could not

*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
meet the child’s needs and signed an entrustment agreement delivering the child to the

Department.

The child suffers from DiGeorge Syndrome, a genetic condition which has caused him

numerous health problems, including heart defects, abnormal facial features, thymus

underdevelopment, a cleft palate, and hypocalcemia, a shortage of calcium in his blood. When

the Department obtained custody, the child was seven years old. He had only a few teeth, all of

which had been capped, and he was not completely toilet trained. The child needed surgery on

his tear ducts and had a hearing deficit in his left ear which necessitated his wearing a hearing

aid. His speech could not be understood to an “untrained” ear, and he used nonverbal gestures to

communicate. Later testing revealed he did not know the alphabet or how to write his name.

Initially, the Department established a goal of “return home” to the mother. To achieve

that goal, mother was required to participate in parenting classes, and to undergo a psychological

evaluation. She had undergone a prior psychological evaluation in connection with the child’s

younger siblings. The Department also recommended that a guardian be appointed to assist

mother in meeting her day-to-day functions, such as paying bills and managing finances.

Mother met with Dr. Doris Nevin on August 12 and September 12, 2005, to complete the

psychological evaluation. Dr. Nevin found that mother suffered from mild mental retardation

and that her “adaptive functioning [wa]s at a very low level which would make it difficult for her

to manage the daily activities of caring for herself and others . . . particularly in regards to caring

for any child with special needs.” Dr. Nevin noted that mother suffered from a serious cardiac

condition as well as significant dental problems. In Dr. Nevin’s opinion, mother’s intellectual

limitations were such that she was unlikely to meet the “complex needs” of her son.

Sharon Brammer began providing counseling services to the child in December 2004.

Initially, he was “extremely violent.” Brammer described him as “one of the most aggressive

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children that [she] ha[d] seen,” displaying behaviors such as growling, primal screaming, and

killing play figures. He also exhibited “indiscriminate attachment patterns,” i.e., he became

excessively attached to individuals with whom he had relatively brief interaction. Brammer

explained that such behavior occurs when a child “has not learned to use a single caregiver as an

attachment figure.”

Upon observing the child’s interactions with mother, Brammer concluded a “disturbed

attachment pattern” existed between them which consisted predominantly of a “negative kind of

teasing.” Mother initiated the teasing, and the two would “banter back and forth and call [each

other] bathroom words.”

As the sessions went on, [the child] began to realize that this was
escalating, and so he would kind of withdraw from her . . . and try
to de-escalate the situation. So, he actually began to take a parent
role. And I noticed he was also detaching from her in the waiting
room. He would, he would be sitting in the foster mother’s lap, or
the foster brother’s lap, with his back to her and the foster mother
would have to actually tell him to go up and speak to his biological
mother.

Brammer also noted mother had great difficulty in setting limits for the child, even after

Brammer modeled appropriate discipline techniques for her.

Brammer testified the child had made “great progress” in his behavior at school and in

his foster home since she first began working with him. The evidence proved the child had

earlier received numerous suspensions from school and riding the school bus as the result of

hitting students and staff, biting, and throwing objects. His foster mother, Sharon Fellows,

described him as “completely defiant” initially, but stated his behavior “started turning around”

within a couple of weeks of receiving appropriate limits. Fellows requested a study at the child’s

school to determine whether his educational needs were being met, and she assisted him with his

homework so that he could stay on task. She noted he was doing “very well” in school and

“instead of being insufficient, [was] making progress.” Fellows testified that the child had
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undergone two surgeries since his placement with her and that his medical needs required “at

least six appointments a month.”

Analysis

The trial court terminated mother’s parental rights pursuant to Code § 16.1-283(C)(2).

That section states as follows:

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

(Emphasis added.)

Mother argues the trial court erred in terminating her parental rights because the

Department failed to show, by clear and convincing evidence, that she had been unwilling or

unable to remedy the conditions which led to or required the continuation of the child’s foster

care placement because she “met all the requirements . . . set forth in the foster care plan.” We

disagree.

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.

See 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). On review, “[a] trial

court is presumed to have thoroughly weighed all the evidence, considered the statutory

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requirements, and made its determination based on the child’s best interests.” Farley, 9 Va. App.

at 329, 387 S.E.2d at 796. Furthermore, “we will not disturb the trial judge’s finding unless it is

‘plainly wrong or without evidence to support it.’” Richmond Dep’t of Soc. Servs. v. Crawley,

47 Va. App. 572, 580, 625 S.E.2d 670, 674 (2006) (quoting M.G. v. Albemarle County Dep’t of

Soc. Servs., 41 Va. App. 170, 181, 583 S.E.2d 761, 766 (2003)).

Although the foster care service plan acknowledges mother’s attendance at the

recommended parenting classes, it also notes her “lack of comprehension.” Mother’s inability to

comprehend the material taught in the parenting class is consistent with Dr. Nevin’s findings that

her limited intellectual functioning rendered her unable to care for a special needs child. In fact,

Dr. Nevin testified mother was unable to identify the grade the child attended in school.

Mother’s attempts to cooperate with the Department in meeting the conditions for the child’s

return, while commendable, were not sufficient to establish her ability to remedy the conditions

which led to the child’s placement.

Our decision in this case is controlled in great measure by our decision in Richmond

Dep’t of Soc. Servs. v. L.P., 35 Va. App. 573, 546 S.E.2d 749 (2001). We held that a parent’s

inability to remedy the conditions which led to the child’s placement is not excused where the

“parent’s mental deficiency . . . 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.” Id. at 585, 546 S.E.2d at 755. Thus, we held in L.P., that the parent’s

mental deficiency does not constitute “good cause” under Code § 16.1-283(C)(2). 35 Va. App.

at 585, 546 S.E.2d at 755.

“[W]hen considering a termination of parental rights, ‘the child’s best interest is the

paramount concern.’” Crawley, 47 Va. App. at 579, 625 S.E.2d at 673 (quoting Wright v.

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Alexandria Div. of Soc. Servs., 16 Va. App. 821, 827, 433 S.E.2d 500, 503 (1993)). “‘[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 v. Reed, 20

Va. App. 306, 312, 456 S.E.2d 538, 540 (1995) (alteration in original) (quoting Kaywood v.

Halifax County Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1995)). “[In

Lecky] we ordered termination of the mother’s parental rights partially because the record did

not suggest ‘that the mere passage of time would resolve her difficulties.’” Crawley, 47

Va. App. at 581-82, 625 S.E.2d at 674-75 (quoting Lecky, 20 Va. App. at 312, 456 S.E.2d at

541). We also noted the mother and child were “emotionally distanced.” Lecky, 20 Va. App. at

309, 456 S.E.2d at 539.

The evidence in this case established that the mother suffers from mental deficiencies that

render her unable to meet the child’s needs. The evidence also showed that a “disturbed

attachment pattern” existed between the child and his mother and that the child had developed

“indiscriminate attachment patterns” toward outsiders due to his failure to attach properly to a

primary caregiver. Brammer testified the child grew so detached from mother that he would not

speak to her without encouragement from his foster mother. Brammer also noted that the child

who initially was “extremely violent” when he began therapy, had made “great progress” in his

behavior at home and at school since his placement in foster care. Likewise, the foster mother

stated that, with daily support, the child was “making progress” and was doing “very well” in

school.

“Nothing in this record . . . suggests that the mere passage of time would resolve

[mother’s] difficulties.” Id. at 312, 456 S.E.2d at 541. “[F]urther 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.” Id. Cf. L.G. v. Amherst County Dep’t of Soc. Servs., 41 Va. App. 51,

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581 S.E.2d 886 (2003) (mother possessed innate ability to improve her parenting skills, albeit

beyond the twelve-month period contemplated by the statute). As in L.P., “the mother’s mental

deficiency in this case does not prevail over the child’s best interests.” L.P., 35 Va. App. at 585,

546 S.E.2d at 755.

We note that mother’s parental rights to the child’s siblings already had been terminated,

thereby providing an additional basis for the trial court to conclude she was unable to remedy the

conditions which led to the child’s placement. See Fields v. Dinwiddie County Dep’t of Soc.

Servs., 46 Va. App. 1, 8, 614 S.E.2d 656, 659 (2005) (under Code § 16.1-283(E), “[a] finding of

a prior termination substitutes for a finding that the parent had failed to remedy the conditions

leading to the child’s foster care placement”). Nevertheless, mother argues that the trial court

erred in finding the evidence sufficient to warrant termination under Code § 16.1-283(C)(2) after

concluding termination was not warranted under Code § 16.1-283(B). While the trial court

based its ruling on Code § 16.1-283(C)(2) rather than Code § 16.1-283(B) or Code

§ 16.1-283(E), it made no findings regarding the sufficiency of the evidence under subsection

(B). In any event, as appellant failed to present this argument to the trial court, we decline to

address it for the first time on appeal. See Rule 5A:18.

Clear and convincing evidence proved that the mother’s mental capacity rendered her

unable to remedy the conditions which led to the child’s placement in foster care. Therefore, we

affirm the trial court’s decision.

Affirmed.

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