COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Willis
JOSEPH HAYES
MEMORANDUM OPINION*
v. Record No. 1166-05-2 PER CURIAM
NOVEMBER 1, 2005
PETERSBURG DEPARTMENT OF
SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Pamela S. Baskervill, Judge
(Katina C. Whitfield; Law Office of Katina C. Whitfield, on brief),
for appellant. Appellant submitting on brief.
(Joan M. O’Donnell, on brief), for appellee. Appellee submitting
on briefs.
(James Wicker Traylor, on brief), Guardian ad litem for the minor
child. Guardian ad litem submitting on brief.
On April 15, 2005, the trial court entered an order terminating the parental rights of Joseph
Hayes to his son, Y.H., pursuant to Code § 16.1-283. On appeal, Hayes contends the Petersburg
Department of Social Services (PDSS) did not prove by clear and convincing evidence that the
termination was in the best interests of the child. We disagree, and affirm the decision of the trial
court.
FACTS
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).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Y.H. was born on August 15, 2003 to Tiffany Hobson. At the time of Y.H.’s birth, Hobson
admitted using cocaine and alcohol during her pregnancy.1 Within forty-eight hours of his birth,
cocaine and alcohol were detected in Y.H.’s system, leading to a medical diagnosis that he had been
exposed to a controlled substance in utero. By emergency order entered on August 19, 2003, Y.H.
was placed in the temporary custody of PDSS.
Hayes was present at Y.H.’s birth but did not admit paternity. He refused to comply with
PDSS’s request for a drug test. A court-ordered paternity test later confirmed that he was the
biological father of Y.H. Hayes had never lived with or been married to Hobson.
The initial Foster Care Service Plan, dated October 16, 2003, required Hayes to maintain
appropriate housing, complete a psychological evaluation, successfully complete parenting classes,
actively participate in counseling services, participate in a drug and alcohol assessment, maintain
visitation with the child, and comply with PDSS’s requirements for drug screening. Although
Hayes complied with most of the requirements, he did not seek therapy until June of 2004.
At the time of the termination hearing, Y.H. had remained in the same foster home since he
was placed in the custody of PDSS. Y.H. responded affectionately to the foster family, and tried to
imitate the foster father. By contrast, during Hayes’ regular supervised visitation periods with Y.H.,
the child did not respond to Hayes by name or in a manner different from the social workers at
PDSS. During early visitation with Y.H., Hayes did not change the baby’s diaper as needed. After
being advised that the child’s diaper must be changed when needed, Hayes changed the diaper at
every visitation, regardless of whether the diaper was dirty or not. Hayes exhibited discomfort
when handling Y.H. at visitation sessions.
1
Hobson had other children who previously had been removed from her care upon an
adjudication of neglect. Moreover, at the time of Hayes’ termination hearing, Hobson’s parental
rights to Y.H. had been terminated.
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Hayes had a reported history of schizophrenia. He had been unemployed and had received
SSI benefits since 1992. He was admitted to Central State Hospital in 1991 with a primary
diagnosis of polysubstance abuse, psychotic disorder NOS, and borderline intellectual functioning.
Hayes also was hospitalized at Poplar Springs Hospital in 1995. His discharge summary from
Poplar Springs indicated a diagnosis at the time of admission of schizoaffective disorder, bipolar
and paranoid personality.
Dr. Greg Wolber conducted a psychological evaluation of Hayes in October of 2003.
Wolber concluded that relatively intensive supervision and monitoring would be necessary if Hayes
were to gain custody of Y.H. Such supervision would include periodic evaluation of Hayes’ mental
state, including an assessment of his need for medication. Drug screening would be required upon
any indication that Hayes had become involved with drugs. Periodic observations for signs of
increasing psychopathology also were warranted. Wolber stated that Hayes became confused when
under stress and that he had a tendency to minimize or deny his difficulties. In fact, after PDSS
filed a Foster Care Service Plan with an amended goal of adoption, Hayes did not appear to
understand the implication of this change although it had previously been explained to him.
Hayes testified he had not been hospitalized since 1995 for psychotic episodes or mental
health issues. Hayes stated he had cared for his ailing mother for four years prior to her death.
Hayes’ sister and cousin each indicated willingness to assist Hayes in caring for Y.H., although
neither lived in Hayes’ home on a permanent basis.
The trial court found that it was in Y.H.’s best interests to terminate Hayes’ parental rights.
The trial court specifically found: (1) the use of drugs leading to Y.H. being born with drugs and
alcohol in his system presented a serious and substantial threat to Y.H.’s life, health, and
development, and it was unlikely the conditions which resulted in such neglect could be
substantially corrected or eliminated to allow the child’s safe placement with Hayes within a
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reasonable period of time; (2) Hayes suffers from a mental or emotional illness or deficiency of
such severity that there is no reasonable expectation that he will be able to undertake responsibility
for Y.H.’s care in accordance with his age and stage of development; and (3) Hayes, without good
cause, did not respond or follow through with appropriate, available, and reasonable rehabilitative
efforts on the part of PDSS to eliminate or prevent the neglect or abuse of the child.
ANALYSIS
On appeal, we will not disturb a trial court’s findings unless they are plainly wrong or
without evidentiary support. See Roanoke City Dep’t of Soc. Servs. v. Heide, 35 Va. App. 328,
336, 544 S.E.2d 890, 894 (2001).
Pursuant to Code § 16.1-283(B), a parent’s rights to a neglected or abused child may be
terminated upon clear and convincing evidence that such action is in the best interests of the
child and
(2) It 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 or
parents within a reasonable period of time. . . .
Proof of any of the following shall constitute prima facie
evidence of the conditions set forth in subdivision B 2 hereof:
(a) The parent or parents are 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
undertake responsibility for the care needed by the child in
accordance with his age and stage of development; [or]
* * * * * * *
(c) The parent or parents, without good cause, have not
responded to or followed through with appropriate, available and
reasonable rehabilitative efforts on the part of social, medical,
mental health or other rehabilitative agencies designed to reduce,
eliminate or prevent the neglect or abuse of the child.
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Without challenging the trial court’s findings of the circumstances set forth in Code
§ 16.1-283(B)(2) (a) and (c), Hayes contends PDSS did not provide clear and convincing
evidence that the termination was in the best interests of the child. The evidence proved,
however, that Hayes twice had received inpatient treatment for mental illness. He had been
diagnosed in 1991 with polysubstance abuse, psychotic disorder NOS, and borderline intellectual
functioning. In 1995, Hayes was diagnosed with schizoaffective disorder, bipolar and paranoid
personality. Hayes had not worked since 1992, subsisting on SSI benefits. Although Hayes
regularly attended visitation with Y.H., Hayes did not respond appropriately to the child’s needs
and appeared uncomfortable with him. Hayes was not permitted unsupervised visitation with
Y.H. Two relatives indicated a willingness to help Hayes with Y.H., but neither lived with
Hayes permanently or was available to assist Hayes continuously. Wolber opined that Hayes
became confused under stress, tended to minimize or deny his limitations, and would require
ongoing supervision and monitoring if he was granted custody of Y.H. Hayes did not appear to
understand matters pertaining to Y.H. that previously had been explained to him. Moreover,
Hayes had not availed himself of the rehabilitative services provided him, as he did not seek
mental health therapy until June of 2004, eight months after he was ordered to do so by the initial
Foster Care Service Plan.
At the time of the termination hearing, Y.H. had resided with the same foster family for
twenty months. Y.H. was thriving and on target for his age. He expressed affection for the
foster family, even imitating his foster father. By contrast, Y.H. demonstrated no special
attachment to Hayes during the visitation sessions.
We recognize that “‘[t]he termination of [residual] parental rights is a grave, drastic and
irreversible action.’” Helen W. v. Fairfax County Dep’t of Human Dev., 12 Va. App. 877, 883,
407 S.E.2d 25, 28-28 (1991) (citation omitted). However, “[i]t is clearly not in the best interests
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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 v. Halifax County Dep’t of Soc.
Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990).
We find the admissible evidence proved, clearly and convincingly, that termination of
Hayes’ parental rights was in Y.H.’s best interests. Accordingly, we affirm the decision of the
trial court.
Affirmed.
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