COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
BRANDY WIMMER
MEMORANDUM OPINION* BY
v. Record No. 1478-04-3 JUDGE ROBERT P. FRANK
OCTOBER 5, 2004
ROANOKE CITY DEPARTMENT OF
SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Charles N. Dorsey, Judge
(Eric Roland Spencer, 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.
(Diana M. Perkinson; Perkinson & Perkinson, on brief), Guardian
ad litem for the infant children. Guardian ad litem submitting on
brief.
Brandy Wimmer (mother) appeals the trial court’s order which affirmed a decision of the
juvenile and domestic relations district court to change the goal of the foster care service plan for
her children from “return to parent” to “adoption.” On appeal, mother contends the evidence
was insufficient to support the change. We hold that the trial court did not err in finding that a
preponderance of the evidence supported the foster care goal change. Accordingly, we affirm the
decision of the trial court.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
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).
So viewed, the evidence established the Roanoke City Department of Social Services
(DSS) obtained an emergency removal order for mother’s daughter, ML, on November 13, 2002,
as a result of a child protective services complaint received from a hospital. ML had been
diagnosed at the hospital with shaken baby syndrome. As a result of the shaking incident, ML
has a number of physical disabilities requiring special services, including blindness,
developmental delays, and cerebral palsy. ML also requires weekly physical therapy. Mother
was convicted on December 2, 2003 of felony child abuse or neglect for the injuries ML
sustained.
When ML entered foster care, DSS set forth responsibilities for mother to achieve in
order for ML to return home. Mother was to undergo a psychological evaluation and comply
with any recommendations resulting from the examination. She was to participate in counseling
and parenting classes, maintain employment and financial stability, and cooperate with the Court
Appointed Special Advocate. Although mother completed the evaluation, complied with
counseling, and attended parenting classes, DSS remained concerned because mother deferred all
parenting questions to her mother, Sharon St. Clair. St. Clair’s petition for custody of ML was
twice denied based in part on her history of psychiatric hospitalizations and instability. During
the time ML has been in foster care, mother has been unable to find employment or stable
housing. DSS concluded mother’s instability prevented her from meeting the exceptional
demands ML’s special needs require.
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On October 28, 2003, mother gave birth to MN. Fearing that she would be abused or
neglected in mother’s home, DSS immediately removed MN.
DSS moved to change the goal for the two girls to adoption based upon mother’s failure
to maintain stable housing, obtain or maintain employment, and her conviction for felony child
abuse or neglect.
ANALYSIS
Proof by a preponderance of the evidence is the appropriate standard in a case involving
the modification of foster care plans pursuant to Code § 16.1-282. Padilla v. Norfolk Div. of
Soc. Servs., 22 Va. App. 643, 645, 472 S.E.2d 648, 649 (1996).
“When addressing matters concerning a child . . . the paramount consideration of a trial
court is 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). “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.” Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990). On appeal, we
presume that the trial court “thoroughly weighed all the evidence, . . . and made its determination
based on the child’s best interests.” Id. at 329, 387 S.E.2d at 796. Furthermore, “[w]here, as
here, the trial court heard the evidence ore tenus, its finding is entitled to great weight and will
not be disturbed on appeal unless plainly wrong or without evidence to support it.” Martin v.
Pittsylvania County Dep’t of Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986).
The evidence showed that mother was convicted of felony child abuse or neglect
following the injuries ML sustained and the diagnosis that she suffered from shaken baby
syndrome. Mother has also failed to comply with all the requirements of the foster care plan.
Specifically, she has been unable to maintain stable housing or financial stability, and has been
unable to secure employment in the over seventeen months since ML entered foster care.
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She has not addressed the responsibilities identified by DSS in order to regain custody of her
daughters. “‘[P]ast actions and relationships over a meaningful period serve as good indicators
of what the future may be expected to hold.’” Linkous v. Kingery, 10 Va. App. 45, 56, 390
S.E.2d 188, 194 (1990) (citation omitted).
Mother’s contention that DSS failed to provide her with reasonable services following the
removal of MN from her care is also without merit. In pertinent part, Code § 16.1-281(B)
provides:
The local board or other child welfare agency having custody of
the child shall not be required by the court to make reasonable
efforts to reunite the child with a parent if the court finds that . . .
based on clear and convincing evidence, the parent has subjected
any child to aggravated circumstances, or abandoned a child under
circumstances which would justify the termination of residual
parental rights pursuant to subsection D of § 16.1-283.
(Emphasis added.)
Code § 16.1-281 defines “aggravated circumstances” as:
torture, chronic or severe abuse, or chronic or severe sexual abuse,
if the victim of such conduct was a child of the parent or child with
whom the parent resided at the time such conduct occurred,
including the failure to protect such a child from such conduct,
which conduct or failure to protect: (i) evinces a wanton or
depraved indifference to human life, or (ii) has resulted in the
death of such a child or in serious bodily injury to such a child.
Mother’s conviction for felony child abuse or neglect constitutes a finding of “aggravated
circumstances.” Therefore, DSS proved, by a preponderance of the evidence, that changing the
goal from “return to parent” to “goal for adoption” was in the best interests of both of the
children. Accordingly, the trial court did not err in affirming the order of the juvenile and
domestic relations district court approving the permanent foster care service plan with a goal of
adoption.
Affirmed.
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