Joann Gibson v. Newport News Dept Social Services

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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