COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Willis
JOANN GIBSON
MEMORANDUM OPINION *
v. Record No. 0378-03-1 PER CURIAM
AUGUST 12, 2003
NEWPORT NEWS DEPARTMENT OF
SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
(Bryan L. Saunders; Saunders & Lawrence
Affiliated Law Offices, on brief), for
appellant. Appellant submitting on brief.
(Kim Van Horn Gutterman, Assistant City
Attorney, on brief), for appellee. Appellee
submitting on brief.
Joann Gibson, mother, appeals a decision of the trial court
terminating her parental rights in her four children. She
contends the evidence was insufficient to establish that she
failed to substantially remedy the conditions that led to the
placement of the children and that it was in the best interests of
the children to terminate her parental rights. Upon consideration
of the record and briefs of the parties, we affirm the trial
court's decision.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
BACKGROUND
On appeal, we view the evidence and all the reasonable
inferences in the light most favorable to the Newport News
Department of Social Services (DSS) as the party prevailing below.
See McGuire v. McGuire, 10 Va. App. 248, 250, 391 S.E.2d 344, 346
(1990).
Mother has four children, Xavier, Trimaine, Katherine and
Jonathan (collectively, "the children"). At the time of the trial
court hearing, the children ranged in age from two years old to
eight years old. DSS became involved with the family in June 2000
when the family faced eviction from their apartment for mother's
failure to maintain the apartment. DSS also determined that
mother had an inadequate food supply for the children and had
provided inadequate medical care for them. DSS gave the family
food and referred mother to several programs, including a
substance abuse program. Mother admitted she used cocaine and
marijuana.
In June 2000, before the birth of the fourth child, mother's
three children were removed from her custody. At that time, one
child was hospitalized with a visible skin infection and another
child had hyperthyroidism, which was not being treated. DSS
formulated a service plan with requirements that mother needed to
fulfill before she could regain custody of the children. DSS
offered mother services for substance abuse, parenting skills,
anger management, counseling, housing, and employment. DSS also
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informed mother she needed to refrain from substance abuse and
obtain employment and housing for six months or more. While DSS
worked with mother, she participated in at least five different
substance abuse programs.
In December 2000, mother's fourth child, Jonathan, was born
while mother was in a residential substance abuse program.
Jonathan was four months premature, had serious medical issues,
and was hospitalized until March 2001. After he was discharged
from the hospital to mother's care, mother lost contact with DSS.
Mother also missed several of Jonathan's medical appointments. In
April 2001, DSS removed Jonathan from mother's custody because he
was in danger of medical neglect and because mother had failed to
comply with substance abuse treatment.
DSS referred mother to a job training program, which mother
completed. However, mother relapsed into drug use in July 2001,
and DSS referred her to another substance abuse program. Mother
was discharged from the program for missing numerous appointments.
Mother also failed to maintain employment for six months or
more, and she failed to attend Narcotics Anonymous meetings as
instructed. Mother moved frequently and did not maintain a stable
or suitable home for the children. At the time of the hearing,
she was living in a shelter and she owed overdue rent money to a
former landlord, which was prohibiting her from obtaining public
housing. However, mother consistently visited the children while
they were in foster care.
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The three older children are living together with a family
who would like to adopt them. These children are doing well in
foster care. Jonathan has been in a foster home since he was four
months old and that foster family is interested in adopting him.
Mother admitted that she had continued to use drugs until
about May 2002, almost two years after three of her children had
been removed from her custody. However, mother testified that she
had not used drugs for the past seven months. At the time of the
hearing, she had been in a drug and employment program for the
past three weeks. Mother testified she was on a waiting list to
obtain public housing in Norfolk. Mother also stated that she is
trying to do everything she can to improve her family situation
and that she cares about her children.
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)
(citation omitted). Subsection (C)(2), the subsection under which
the trial court terminated mother's parental rights in this case,
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
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cause," to remedy those conditions. 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).
Mother contends she "had been making progress" toward
substantially remedying the conditions which led to the foster
placement of the children. The evidence, viewed in the light most
favorable to DSS, established that DSS made "reasonable and
appropriate efforts" to help mother remedy the conditions which
both "led to" and "required continuation of" the children's foster
care placement. See Code § 16.1-283(C)(2). Nonetheless, mother
failed to make reasonable progress toward eliminating the
conditions which led to the placement. By her own admission, she
continued to use drugs for two years after three of her children
were removed from her care. She participated in at least five
substance abuse programs. She marginally completed one program
and was discharged from several others for non-compliance. Mother
was enrolled in a drug treatment program at the time of the trial
court hearing, two and one-half years after the first three
children were removed from her custody. In addition, mother
failed to maintain steady employment or obtain stable and adequate
housing for the children.
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"It is clearly not in the best 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). The three older
children have been in foster care for over two and one-half years,
are doing well there, and are placed together with one family who
is interested in adopting them. The youngest child has been in
foster care for one and one-half years, since he was four months
old. His foster family is also interested in adopting him.
"The trial court's judgment, 'when based on evidence heard
ore tenus, will not be disturbed on appeal unless plainly wrong
or without evidence to support it.'" Logan v. Fairfax County
Dep't of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463
(1991) (citation omitted). The record supports the trial
court's finding that DSS presented clear and convincing evidence
satisfying the statutory requirements of Code § 16.1-283 and
establishing that termination of mother's parental rights is in
the children's best interests.
Accordingly, we affirm the decision of the trial court.
Affirmed.
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