COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
SHANNA HARVEY
MEMORANDUM OPINION *
v. Record No. 0637-03-2 PER CURIAM
AUGUST 26, 2003
CITY OF RICHMOND
DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Theodore J. Markow, Judge
(Rhonda L. Earhart; Boulevard Law Offices, on
brief), for appellant.
(Sarah M. Denham, Assistant City Attorney, on
brief), for appellee.
(Sharon S. England, on brief), Guardian ad
litem for the minor child.
Shanna Harvey (mother) appeals a decision of the trial court
terminating her residual parental rights in her daughter, I.H.
(daughter) pursuant to Code § 16.1-283(B)(2), 16.1-283(C)(1) and
16.1-283(C)(2). On appeal, mother contends the evidence was
insufficient to support the termination. Upon reviewing the
record and briefs of the parties, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the decision of
the trial court. See Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
On appeal, we view the evidence and all the reasonable
inferences in the light most favorable to the City of Richmond
Department of Social Services (the Department) as the party
prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,
391 S.E.2d 344, 346 (1990).
BACKGROUND
Daughter was born on June 14, 1999. On October 11, 1999,
when she was about four months old, daughter first came into the
custody of the Department when she was diagnosed with failure to
thrive because she was not receiving proper nutrition. On October
18, 1999, daughter was placed back in mother's custody under a
preliminary child protective order, which mandated that mother
cooperate with the Department and maintain medical appointments
for daughter.
Based on mother's non-compliance with the protective order,
the Department again removed daughter from mother's custody in
February 2000. Daughter was placed in the care of a foster mother
who reported that daughter was so malnourished she was "almost in
a comatose state" and could not hold up her head. For the first
several days, the foster mother had to awaken daughter every four
hours to feed her.
Brinette Jones, a family stabilization worker, worked with
mother from January 2000 until December 2000. Jones testified
that in January 2000, daughter was seven months old and weighed
only twelve pounds. Jones stated that daughter's primary need was
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to be fed every three hours. Jones gave mother referrals to
programs that would assist her with medical needs, parenting
classes, housing, counseling, and employment. Jones stated that
mother did not fully cooperate with the housing referrals, and she
missed numerous counseling appointments. Mother completed a
six-week parenting class. Mother also missed several of
daughter's medical appointments.
As a result of the initial poor care daughter received,
daughter has extensive special needs, requiring individualized
attention. Dr. Josie Castaldi, a clinical child psychologist,
diagnosed daughter with attention deficit hyperactivity disorder,
possible attachment issues, sensory integration issues, and social
interaction difficulties. She requires constant supervision
because she lacks an age appropriate awareness of danger.
Daughter rocks, hits, and bites herself. Dr. Castaldi also opined
that daughter is "an ongoing risk for developmental delays, but
she is making progress" while in the care of the foster family.
Laura Martin, an occupational therapist, worked with daughter
once a week from December 2000 until June 2002. She stated that
daughter needs constant supervision and a strict sensory program.
Mother attended five of nine scheduled therapy sessions in order
to receive training in the sensory program and to familiarize
herself with daughter's needs and limitations. Martin testified
that, after attending the sessions, mother did not understand the
program or her daughter's needs despite the fact that Martin had
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discussed the program with her and provided her with written
materials. In one session, Martin asked mother to supervise
daughter while mother's other child was also present. However,
Martin stated that things became "pretty chaotic," daughter
climbed onto shelves, and Martin had to intervene to control
daughter's behavior.
Hope Fowler is a foster care worker who has worked with the
family the entire time daughter has been in foster care. She
testified that the first foster care plan had a goal of return to
parent. Since Fowler has worked with the family, mother has lived
in ten different places and had about seven jobs. Mother refused
assistance with housing and employment, failed to complete
counseling, and completed one of two parenting programs. Mother
also finished an anger management class.
In March 2001, Fowler filed another foster care plan with the
goal of placement with relatives. However, after considering the
maternal grandmother and three other relatives, she was unable to
find a suitable relative with whom to place daughter.
A clinical psychologist, Dr. Penny Sprecher, has diagnosed
mother with intermittent explosive disorder and dependent
personality disorder. Dr. Sprecher stated that these disorders
would make it difficult to parent a special needs child due to the
"unpredictable explosiveness" and "difficulty in making
independent decisions" associated with the disorders.
Dr. Sprecher also testified that mother continues to deny the
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seriousness of daughter's condition. At the time of her January
2002 evaluation of mother, Dr. Sprecher opined that it would not
be in daughter's best interests to be returned to mother.
Dr. Sprecher recommended that mother continue in therapy.
However, mother last attended a counseling session in August 2002.
Mother's counselor also testified that mother "was not highly
motivated" to work on parenting issues. Mother told the counselor
that she had already completed parenting and anger management
classes.
Since daughter has entered foster care, mother has missed
numerous scheduled visits and was sometimes significantly late for
a visit. In addition, Fowler testified that she observed mother
interact inappropriately with daughter during the visits, such as
talking on her cell phone for five or ten minutes and slowly
responding to daughter's needs.
Pamela Taylor, a family service coordinator, was an in-home
service worker for mother from late May 2002 to February 2003.
She offered mother services and information related to employment,
housing, parenting classes, child care for mother's younger child,
and obtaining her GED. Taylor testified mother often cancelled
employment appointments and was having trouble paying the rent on
her apartment. Mother did not engage in any of the opportunities
referred to her by Taylor, and, at one point, she blocked Taylor
from calling her telephone number. Mother also cancelled at least
ten of twenty scheduled appointments with Taylor. When daughter
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visited mother at her home, mother provided no structure or
activities for daughter and simply allowed her to "run around" the
apartment. Taylor also testified that mother's home was "in
complete disarray" with empty beer bottles and trash scattered
around. Taylor opined that mother is not currently in a position
to parent daughter and she will not be in the foreseeable future.
The guardian ad litem for daughter recommended that it was in
the best interests of daughter to terminate mother's parental
rights, stating that mother did not have the ability to overcome
her deficits and that she lacks the skills necessary to handle
daughter.
In April 2002, Fowler filed a foster care plan with the goal
of adoption. The juvenile and domestic relations district court
approved the plan and terminated mother's parental rights. Mother
appealed that decision to the trial court. The trial court found
by clear and convincing evidence that it was in daughter's best
interests to terminate mother's parental rights and that the
Department had met its burden pursuant to Code § 16.1-283(B)(2),
16.1-283(C)(1) and 16.1-283(C)(2).
ANALYSIS
"Code § 16.1-283 embodies the statutory scheme for the
termination of residual parental rights in this Commonwealth."
Lecky v. Reed, 20 Va. App. 306, 311, 456 S.E.2d 538, 540 (1995).
Pursuant to Code § 16.1-283(B), one of the subsections
under which the trial court terminated mother's parental rights,
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the residual parental rights to a child who has been found by
the court to be abused and neglected and placed in foster care
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:
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.
Clear and convincing evidence is "'that measure or degree of
proof which will produce in the mind of the trier of facts a firm
belief or conviction as to the allegations sought to be
established.'" Martin v. Pittsylvania County Dep't of Soc.
Servs., 3 Va. App. 15, 21, 348 S.E.2d 13, 16 (1986) (citation
omitted).
The evidence showed that the Department removed daughter
from mother's custody twice before daughter was seven months
old. At the age of seven months, daughter weighed only twelve
pounds and was practically in a coma because she was
malnourished and lacked appropriate medical care. Manifestly,
such circumstances presented a serious risk to daughter's health
and safety.
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Daughter continues to suffer from several disorders as a
result of her inferior initial care, and the evidence showed
that mother lacks the skills necessary to address the special
needs and constant attention daughter requires. One expert
opined that mother was in denial concerning the reality of
daughter's condition. Moreover, despite numerous services and
referrals offered to mother related to housing, employment, and
counseling, mother had not improved the family's living
conditions, and the evidence supported a finding that it was not
reasonably likely that the conditions resulting in the neglect
would be substantially corrected so as to allow daughter's safe
return to mother.
Code § 16.1-283(C)(1) provides that parental rights 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 have, without
good cause, failed to maintain continuing
contact with and to provide or substantially
plan for the future of the child for a
period of six months after the child's
placement in foster care notwithstanding the
reasonable and appropriate efforts of
social, medical, mental health or other
rehabilitative agencies to communicate with
the parent or parents and to strengthen the
parent-child relationship.
The evidence showed that mother did not consistently visit
daughter and was often one-half hour late for the one-hour
visits. Mother sometimes spoke on the telephone during her
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visitation time, and she failed to plan any activities when
daughter visited mother at her residence. At one point, mother
blocked the in-home service worker from calling her home
telephone number, preventing the worker from scheduling any
visits with daughter. Mother would also cancel visits at the
last minute and fail to return telephone calls.
In addition, mother failed to demonstrate that she
substantially planned for daughter's future, notwithstanding the
reasonable efforts of the Department. Although the Department
informed mother of her obligations under the foster care plan
and offered her numerous services, including in-home services,
she failed to complete most of her obligations, despite the
passage of three years since daughter was placed in foster care.
"The Department is not required 'to force its services upon an
unwilling or disinterested parent.'" Logan v. Fairfax County
Dep't of Human Dev., 13 Va. App. 123, 130, 409 S.E.2d 460,
463-64 (1991).
Code § 16.1-283(C)(2) requires proof, by clear and convincing
evidence, that (1) the termination is in the best interests of the
child, (2) "reasonable and appropriate" services have been offered
to help the parent "substantially remedy the conditions which led
to or required continuation of the child's foster care placement,"
and (3) despite those services, the parent has failed, "without
good cause," to remedy those conditions.
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The evidence established that the Department had worked with
mother for over three years, offered her numerous services to help
her find adequate housing and regular employment and offered her
other educational services and referrals. Therefore, the
Department made "reasonable and appropriate efforts" to help
mother remedy the conditions which both "led to" and "required
continuation of" daughter's foster care placement in 1999.
Nonetheless, mother failed to make reasonable progress toward
eliminating the conditions which led to daughter's foster care
placement. For example, mother refused some of the Department's
recommended services and she only partially complied with other
programs. She has been unable to integrate the skills necessary
to properly care for daughter. In addition, daughter, who has
highly specialized needs, is making progress while she is in
foster care, and she is attending structured and specialized
programs that address her needs. Furthermore, at the time of the
trial court's hearing, daughter was three and one-half years old
and she had been in foster care for three years. "It is clearly
not in the bests 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 his responsibilities." Kaywood v. Halifax
County Dep't of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492,
495 (1990) (citation omitted).
Moreover, the record shows that the Department considered and
investigated placing daughter with a relative. However, for
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various reasons, the Department was unable to locate a suitable
relative or situation.
The evidence in this case supports the trial court's
findings. Thus, we cannot say that the trial court's findings
that the conditions of Code § 16.1-283(B)(2), 16.1-283(C)(1) and
16.1-283(C)(2) have been established was plainly wrong or without
evidence to support it. Accordingly, we summarily affirm the
decision of the trial court.
Affirmed.
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Shanna Harvey v. Richmond Dept of Social Services
Combined Opinion