COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Overton
Argued by Teleconference
KATHLEEN PADILLA
OPINION BY
v. Record No. 2027-95-1 JUDGE JERE M. H. WILLIS, JR.
JULY 9, 1996
NORFOLK DIVISION OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Charles E. Poston, Judge
Bruce C. Sams (Sams & Hawkins, P.C., on
brief), for appellant.
Kamala Hallgren Lannetti, Assistant City
Attorney (Philip R. Trapani, City Attorney,
on brief), for appellee.
On appeal from an order changing the foster care service
plan goals for two of her children from "Return to Parent" to
"Goal for Adoption," Kathleen Padilla contends that the trial
court erred in failing to require proof that she was an unfit
parent and in finding that clear, cogent, and convincing proof
supported changing the goals of the foster care service plans.
We find no error and affirm the judgment of the trial court.
On February 17, 1993, Ms. Padilla's six children were
removed from her custody following a child protective services
investigation into the death of one of her infant twins and the
lodging of neglect charges against her relating to her remaining
children. Five of her children were placed in the custody of the
Norfolk Division of Social Services. The sixth child was placed
in the custody of his paternal grandmother.
One of the five children was placed permanently in a
therapeutic foster home. Two others did not adjust to foster
care and were returned to Ms. Padilla's custody in June, 1994.
Ms. Padilla was provided extensive personal and family
counseling, home based services five days per week, parenting
classes, and psychological examinations. The remaining two
children, the subjects of this case, have resided in separate
foster homes since February, 1993.
In January, 1995, the juvenile and domestic relations
district court denied Ms. Padilla's petition for custody
of the two subject children. Upon recommendation of the
court-appointed special advocate, the juvenile court ordered
the goals of the children's foster care service plans changed
from "return to parent" to "goal for adoption." Ms. Padilla
appealed that decision to the trial court, which found that it
was "not reasonably likely that [the two children] can be
returned to Kathleen Padilla within a predictable time consistent
with the best interests of the children despite intensive and
extended efforts by Norfolk Division of Social Services and other
parties to correct the conditions which led to removal from the
home." The trial court ordered the goals of the foster care
service plans changed to "goal for adoption" for both children.
Ms. Padilla contends, first, that the trial court erred in
failing to require proof that she was an unfit parent, and
second, that the trial court erred in finding that clear and
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convincing proof supported changing the goal of the foster care
service plans from "return to parent" to "goal for adoption." We
find neither argument persuasive.
Code § 16.1-282 sets forth no specific standard of proof for
the establishment or modification of foster care plans. However,
in Wright v. Arlington County Dep't of Social Services, 9 Va.
App. 411, 388 S.E.2d 477 (1990), we held that the appropriate
standard of proof for an abuse and neglect hearing is proof by a
preponderance of the evidence. Id. at 414, 388 S.E.2d at 479.
This case is analogous to Wright because the placement of the
children remains temporary. Thus, proof by a preponderance of
the evidence is the appropriate standard in this case. The
evidence satisfied that standard.
Ms. Padilla's parental rights were not terminated in this
proceeding. Should a proceeding be brought to terminate her
parental rights, the "clear and convincing" burden of proof and
the elements of proof set forth in Code § 16.1-283 will then
apply. Ms. Padilla's parental fitness was not an issue in this
proceeding.
We affirm the judgment of the trial court.
Affirmed.
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