COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Felton and McClanahan
Argued at Alexandria, Virginia
MELISSA McCUTCHEON
MEMORANDUM OPINION∗ BY
v. Record No. 0174-03-4 JUDGE ELIZABETH A. McCLANAHAN
MARCH 30, 2004
WARREN COUNTY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF WARREN COUNTY
John E. Wetsel, Jr., Judge
J. Daniel Pond, III (Napier, Pond, Athey & Athey, P.C.,
on brief), for appellant.
Neal T. Knudsen (Neal T. Knudsen, P.C., on brief),
for appellee.
Brian M. Madden, Guardian ad litem for the minor children.
Melissa McCutcheon appeals an order terminating her residual parental rights with
respect to her four children pursuant to Code § 16.1-283. She contends that the trial court erred
in: (1) finding that the Warren County Department of Social Services (DSS) made reasonable
and appropriate efforts to provide services to her; (2) finding that the circumstances resulting in
the removal of the children will not be substantially corrected within a reasonable time; and,
(3) failing to continue the case and direct DSS to provide further services. For the reasons that
follow, we affirm.
∗
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. Facts
This case involves the termination of parental rights to four children. Two of the children
were fathered by William McCutcheon.1 At the time of the hearing, appellant was still married
to McCutcheon, though estranged. McCutcheon sexually molested one of the children in May
1999, while the child was in the custody of appellant and Lewis Lohr. Lohr is the father of the
other two children involved in this appeal, and was appellant’s intermittent live-in paramour and
co-parent. There is evidence in the record that appellant had reported Lohr to DSS for physically
abusing the children.2
Appellant’s history with DSS began in 1996 or 1997 in Culpeper County and continued
when she moved to Orange County in 1997. In 1999, after the sexual assault, Orange County
DSS made founded dispositions concerning two of the children. One of the children was found
to be at high risk for medical neglect, and another was found to be at high risk for physical
neglect. Appellant and Lohr were found, among other things, to lack parenting skills, and to be
unable to provide the children’s minimal needs of shelter, clothing and supervision. The Orange
County DSS also found that appellant did not secure prompt counseling for the child who was
molested.
In 2000, after appellant, Lohr and the children moved to Warren County, several public
service agencies attempted to provide services to the family. In December 2000, when voluntary
efforts failed to improve the children’s living situation, DSS moved for a protective order. In
March 2001, after finding physical neglect of all the children, and after a doctor reported that one
1
William McCutcheon’s parental rights to his children were terminated prior to this case.
2
At the time of trial, Lohr was incarcerated for perjury in connection with swearing out a
false criminal complaint against a DSS caseworker.
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of the children may have been sexually abused by Lohr, DSS obtained an emergency removal
order. At the time of removal, appellant and the children were living with Lohr.
In April 2001, after a preliminary removal hearing, the juvenile and domestic relations
district court found that there was evidence that at least one, if not all, of the children had been
sexually abused, that all of the children suffered from a long history of abuse and/or neglect, and
that the children were being maintained in a “dirty, unhealthy condition.”
In May 2001, foster care service plans for each of the children were filed. The program
goal of each plan was to return the child home. The responsibilities that appellant was required
to meet in order to achieve the goal for each child were identified as:
-Schedule and attend individual therapy at Northwestern
Community Services Board. She is to attend all scheduled
appointments and follow treatment recommendations (Target date:
Ongoing).
-If Ms. McCutcheon chooses to reside with Mr. Lohr, he must have
successfully completed the Shenandoah Valley Sex Offenders
treatment program. The Department will not consider returning
the children if he has not successfully completed the sex offender
program (Target date: Ongoing).
-Obtain and maintain adequate housing that consists of at least
three bedrooms. The house must pass a home safety inspection to
be performed by the Building Inspector. It is the responsibility of
Ms. McCutcheon to arrange for building inspection. Any change
in housing will result in Ms. McCutcheon needing to obtain a new
building inspection. (Target date: Ongoing).
-Obtain and maintain employment that can cover all financial
needs. There is to be no break in employment. If Ms.
McCutcheon decides to terminate employment, she must have a
new job to go to immediately. (Target date: Ongoing).
-Provide monthly verification of her income and expenses. This is
to include verification of rent payment, electric payment, phone
payment, and water/sewer payment. (Target date: Ongoing).
-Attend parenting classes the Department deems appropriate. The
Department will notify Ms. McCutcheon in writing as appropriate
classes become available (Target date: Ongoing).
-Obtain and pay for transportation to all appointments (Target date:
Ongoing).
-Schedule and complete a psychological evaluation with
Dr. Bernard Lewis (Target date: June 8, 2001).
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-Will follow and complete all recommendations outlined in
Dr. Lewis’ evaluation (Target date: Ongoing).
-Will notify the Department in writing within 5 days of any
changes in living situation, address, or employment (Target date:
Ongoing).
The plan also required DSS to provide services for the children’s medical, physical and
psychological needs, and visit them in order to monitor their progress and provide supportive
services. DSS was also required to assist in locating services as requested by the parents.
A second set of foster care service plans was entered in October 2001, with the goal of
returning the children to appellant. After a foster care review hearing in December 2001, the
district court found that Lohr had a recent episode of sexually deviant behavior toward minor
girls, and ordered appellant to live apart from Lohr.
By April 2002, after finding appellant non-compliant in addressing the responsibilities as
set out by the foster care plans, DSS entered a new foster care service plan with a goal of
adoption for the children. Appellant had not found stable housing, had not maintained steady
employment, had not provided DSS with a statement of her income on a regular basis, had not
attended therapy at Northwestern Community Services Board, and had not provided changes of
address to DSS. DSS also found that appellant was unwilling to obtain separate housing from
Lohr and that as long as Lohr was in the household, appellant could not provide safe housing for
the children. DSS petitioned for a permanency planning hearing.
The permanency planning hearing was held on August 30, 2002. After the hearing, the
district court terminated appellant’s parental rights as in the best interests of the children. It
entered an order on September 6, 2002, finding that appellant, pursuant to Code § 16.1-283(C):
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
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efforts of social, medical, mental health or rehabilitative agencies to
such end.
Approximately seventeen months after the initial foster case service plans were entered,
the court found that, without justifiable reason, appellant had complied with just two of the
requirements. The chancellor found that the best interests of the children were to place them in
the custody of DSS. The court also found that it was highly unlikely that the circumstances
resulting in the removal of the children would be substantially corrected or eliminated within a
reasonable period of time under Code § 16.1-283(B)(2). He further found that reasonable and
appropriate efforts had been made by DSS to remedy the conditions that led to the initial removal
of the children. The chancellor then terminated appellant’s residual parental rights to the
children.3
II. Analysis
We view the evidence in the light most favorable to the party prevailing below and grant
to that evidence all reasonable inferences fairly deducible therefrom. Logan v. Fairfax County
Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991). “When addressing
matters concerning [children], including the termination of a parent’s residual parental rights, the
paramount consideration of a trial court is the child[ren]’s best interests.” Id. “‘[T]rial courts are
vested with broad discretion in making the decisions necessary to guard and to foster [the
children]’s best interests.’” Id. (quoting Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794,
795 (1990)). The trial judge’s findings, “‘when based on evidence heard ore tenus, will not be
disturbed on appeal unless plainly wrong or without evidence to support it.’” Id. (citation
omitted).
3
The guardian ad litem for the children recommended to the trial court, and to this Court
at oral argument, that mother’s residual parental rights be terminated.
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Code § 16.1-283 establishes the procedures and grounds under which a court may order
the termination of residual parental rights. Pursuant to Code § 16.1-283(B), the court may
terminate a parent’s residual rights to a child who has been neglected or abused and placed in
foster care if the court finds, based upon clear and convincing evidence, that it is in the child’s
best interest and that:
1. The neglect or abuse suffered by such child presented a serious
and substantial threat to his life, health or development; 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 . . . .
Prima facie evidence of the conditions set forth in subsection (B)(2) exists when there is proof
that the parent, “without good cause, [has] 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 . . . prevent the neglect . . . of the child.” Code
§ 16.1-283(B)(2)(c).
The trial court found that the evidence proved by clear and convincing evidence, both,
(1) that DSS made “reasonable and appropriate efforts” to help mother remedy the conditions
“which led to or required continuation of the children’s foster care placement” and, (2) that
appellant, without good cause, failed “to substantially remedy” those conditions. It also found
that “myriad services” were offered to appellant. The evidence established that DSS began
working with mother in 1997, even before it obtained custody of the children. DSS submitted
foster care plans with the goal of returning the children home in April 2001 and again in October
2001. During that time, DSS assisted appellant in obtaining an evaluation and therapy with
Dr. Lewis and Ms. Spresser, respectively. According to the responsibilities that appellant agreed
to in the foster care plans, she was required to follow the treatment recommendations of
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Dr. Lewis. DSS provided services. Appellant did not follow the treatment recommendations as
required under the foster care plans.
The evidence also supports the finding that appellant was given ample time and
opportunity to remedy the conditions that led to the removal of the children. Appellant
continued to live with Lohr throughout the course of the case, even though she was warned by
DSS that doing so would place the children at risk. Appellant stated that Lohr was “all she had”
– and she expressed her intent to the court that she wanted to seek return of the children to her
and Lohr. She failed to maintain adequate housing. She failed to follow through on regular
counseling that had been arranged for her. She did not obtain appropriate and regular
employment. She failed to provide DSS with monthly verification of her income and expenses.
She was required to inform DSS of any change in her living situation, yet she failed to inform
DSS when she and Lohr were cohabiting, or even where she was living for long stretches of
time. Appellant admitted that she was not able to take care of the children given her
circumstances and that she needed more time to correct the conditions.
The record supports the trial court’s finding that DSS presented clear and convincing
evidence that appellant did not substantially remedy the conditions that led to the removal of the
children and that it is not reasonably likely that the conditions which led to the children’s neglect
and/or abuse will be substantially corrected or eliminated within a reasonable period of time.
The evidence supports the trial court’s finding that termination from their mother is in their best
interests and that the trial court did not err in failing to continue the case. For that and the
foregoing reasons, we affirm the judgment of the trial court.
Affirmed.
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Melissa McCutcheon v. Warren County Department of Social Servics
Combined Opinion