COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Coleman
MICHAEL VAN BUREN
MEMORANDUM OPINION *
v. Record Nos. 2618-02-2 through PER CURIAM
2621-02-2 APRIL 29, 2003
CITY OF RICHMOND
DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Theodore J. Markow, Judge
(Scott D. Cardani, on briefs), for appellant.
(Kate D. O'Leary, Assistant City Attorney;
Marc Yeaker, Guardian ad litem for the infant
Johnny Collins; Karen Matthews, Guardian ad
litem for the infants Catherine, Christina
and Anthony Van Buren, on briefs), for
appellee.
In four separately filed and numbered appeals, Michael Van
Buren (father) appeals the decision of the circuit court
terminating his parental rights to his three children: Catherine
Van Buren 1 (Rec. No. 2618-02-2); Christina Van Buren (Rec. No.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
The record contains at least two different spellings for
each twin girl's name. In this opinion, we will use the names
listed in the final order dated September 3, 2002, and refer to
the twins as Christina and Catherine.
2619-02-2); and Anthony Van Buren (Rec. No. 2621-02-2), and his
stepson Johnny Collins 2 (Rec. No. 2620-02-2).
He contends the evidence was insufficient to support the
terminations under subsection (1) or (2) of Code § 16.1-283(C).
Father also asks this Court to apply the ends of justice exception
to Rule 5A:18 and find that the trial court applied an incorrect
standard to support termination. Upon reviewing the record and
briefs of the parties, we conclude that these appeals are without
merit. Accordingly, we summarily affirm the decisions of the
trial court. Rule 5A:27.
BACKGROUND
On July 7, 1999, the Richmond Department of Social Services
(RDSS) removed the children and placed them in foster care. The
2
Although father filed a separate notice of appeal in the
trial court appealing the September 3, 2002 "Order for
Involuntary termination of Residual Rights" as it relates to
Johnny Collins, his stepson, the manuscript record contains no
final order from the trial court terminating Michael Van Buren's
parental rights to Johnny Collins.
The September 3, 2002 final order contained in the
manuscript record addresses and terminates only the residual
parental rights of Johnny's biological mother, Cassie Van Buren.
That order was endorsed by Cassie's attorney, Robert J. Jacobs,
and not by Michael's attorney, Scott Cardani, who filed the
notice of appeal and opening brief. Because the trial court did
not enter a final order terminating father's parental rights to
Johnny Collins, we dismiss father's appeal in Record No.
2620-02-2 as it relates to Johnny.
Moreover, because Johnny Collins is neither father's
biological nor adoptive son, but his stepson, father had no
residual parental rights for the trial court to terminate.
Therefore, father had no standing to contest the termination of
Johnny's parents' rights.
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twins, Catherine and Christina, were three years old at the time
of removal, Anthony was four and Johnny was eight. On July 8,
1999, Charlotte Scharff with RDSS filed petitions alleging the
children were abused and neglected.
The First Hearing
On February 20, 2002, the trial court conducted a de novo
hearing on RDSS's petition to terminate father's parental rights.
Kelly Davis, a case worker with RDSS, began working with the
family in July 1999. She related how the three younger children
had bruises and bite marks on their arms and legs when she first
saw them. Davis filed the initial foster care plan on September
1, 1999, with a goal of return home by the target date of March
2000. The parents were to have bi-weekly visitation with the
children. RDSS provided the following services and referrals:
(1) refer mother to SCAN, a parents support group; (2) refer
father to Richmond Behavorial Health Authority (RBHA) for
substance abuse evaluation and treatment, if necessary; and (3)
refer father to Commonwealth Catholic Charities for anger
management. RDSS indicated it would provide "other services if
needed," involve parents in service plan updates, and inform them
of court dates.
Davis and the parents returned to court in May 2000 to review
the foster care plan. The report showed that mother attended all
SCAN sessions. Father advised RBHA he had no substance abuse
problem, so RBHA did not recommend treatment; however, father
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attended a substance abuse education course through the Richmond
Office of Community Corrections (ROCC), and in January 2000, he
completed an anger management course sponsored by ROCC. RDSS
referred the parents for a parenting assessment and arranged for
in-home services to work with the family. The program goal
remained "Return Home," and the target date was extended to
December 2000.
In April 2000, RDSS contracted with "Wilkerson's Consulting"
(Wilkerson's) to provide in-home counselors "to work with the
family" twenty hours per week to teach "effective ways of
parenting." Marshelle Anderson is employed by Wilkerson's, which
is a private agency providing "[i]ntensive in-home counseling,
parent aid [and] therapeutic mentoring." She and other counselors
worked with the family from April 2000 until April 2001. The
frequency and length of Anderson's contact with the family
increased to forty hours per week, five or six days per week.
Anderson explained:
In the beginning we were providing parenting
services to assist [the parents] with better
organizing their home. Keeping the home
clean, washing the kid's clothes. Just
daily living skills types of things. We
were also doing about 40 hours of intensive
in-home counseling.
Anderson also worked on ways to discipline and redirect the
younger children's behavior. Anderson indicated that her
company usually works with a family for a period of three to six
months. Anderson recalled that the three younger children
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"weren't speaking" at the time and "couldn't communicate very
well." Thus, "they would bite and push . . . to get what they
wanted." According to Anderson, the three younger children
"were really hard to handle."
Both case worker Davis and counselors with Wilkerson's noted
that the home was disorganized and messy, and the parents were
unable to control the children's behavior or maintain regular
schedules and routines for things such as meals or bedtime. Davis
recalled that mother and father were receptive to recommendations
and advice, but they had difficulty implementing them. In
addition to providing counselors, RDSS also provided daycare for
the three younger children.
Dr. Beverley Chamblin performed psychological evaluations of
father and mother in May 2000, ten months after the children were
initially removed by RDSS. 3 The purpose of the evaluation was "to
help the home care workers teach the Van Burens to be more
constructive parents." Dr. Chamblin also noted RDSS's concern
regarding father's "somewhat negative and controlling attitude
toward some of the assistance he is given" as well as mother's
"very passive . . . behavior." Father dropped out of school in
the seventh grade. He felt that he and his wife were good
parents. Father denied having any emotional problems or any
3
RDSS moved to admit and the trial court admitted father's
evaluation; however, RDSS failed to move to admit the evaluation
of mother. Therefore, her evaluation is not in the record.
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problems with alcohol, even though his father had problems with
alcohol. Father told Chamblin he "drinks a six-pack of beer a
day, especially on the weekends." Father tested "within the
middle of the Borderline range of intellectual functioning."
Dr. Chamblin noted "[a] severe degree of intellectual impairment
[a]s evidenced by the variability among his levels of achievement
(ranges from moderate mental retardation to average)." However,
father's "[i]ntellectual impairment is secondary to central
nervous system dysfunctioning and emotional factors, namely
depression." Although Dr. Chamblin could not pinpoint the origin
of father's "neurological impairment," she opined that "[c]entral
nervous system dysfunctioning appear[ed] to interfere the most in
his intellectual efficiency." Dr. Chamblin found father's
thinking and reasoning "very simplistic and concrete and very
rigid." As a result, "he can think of only one alternative in
each problem situation." Father's "third grade [reading] level"
prevented him from taking a "self-administered parenting
inventory," which required at least a sixth grade reading level.
Dr. Chamblin noted "[t]here is significant evidence to suggest the
presence of alcohol dependence and dysthymic depressive disorder."
She opined that father's neurological impairment might stem from
alcohol abuse. Personality tests revealed "an emotionally
immature adult" who "uses strong defenses of denial and repression
and flight and avoidance." His emotional test responses indicated
"that he easily regresses under stress and can become verbally
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aggressive." In her summary, Dr. Chamblin recommended that father
"be seen for psychiatric evaluation to discuss medical
intervention for his depression."
Although mother's evaluation was not made a part of the
record, see note 3, supra, evidence established that she was
passive and suffered from depression for which she had begun
taking medication.
In June 2000, RDSS returned the children to the parents for a
"trial placement." Wilkerson's continued to provide in-home
consulting work with the family.
Davis left RDSS in October 2000, at which time Sharon Crone
took over as foster care case worker. Crone worked with the
family until September 13, 2001. Crone "saw a deterioration in
the children's behavior from the time [she] received [the case]."
In October 2000, the daycare facility that the children attended
expressed concerns about the children's cleanliness and the
behavior of the three younger children. Crone learned of four
complaints made to Child Protective Services (CPS) and spoke with
a CPS worker who had visited the home and who "told [Crone] her
concerns." 4 Moreover, Crone "had seen the children on several
occasions and [she] didn't see the concerns" pointed out to the
4
Trina Coleman, a Child Protective Services (CPS) worker
for RDSS, received a complaint in November 2000 alleging lack of
supervision and possible physical abuse. According to Coleman's
testimony, RDSS determined that the complaint was founded, level
three (moderate), for lack of supervision.
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parents by RDSS "being addressed." Specifically, Crone noticed
that the "children were dirty" and had "multiple ear infections"
for which treatment was not sought until RDSS intervened. Also,
appointments for the children at therapy were not regularly kept.
Crone "observed the house in disarray several times." The
top two bunks in the two sets of bunk beds in the children's
bedroom contained "so much clutter" that the children had to sleep
together in the bottom bunks. On November 27, 2000, Crone saw
"many bruises on the children." Crone discussed the problem with
the in-home workers, who indicated "they were addressing the same
concerns," however, "they just weren't seeing any improvement."
On November 28, 2000, RDSS removed the children from the parents'
home a second time.
On December 6, 2000, Crone filed another Foster Care Service
Plan. The program goal was "Placement with Relatives" and the
target date was July 2001. Crone explained that, at the time,
RDSS had been involved with the family for seventeen months and
things were not improving satisfactorily, so she felt it was time
to "move on to a new goal." The relatives recommended by the
parents to care for the children eventually declined to take them,
so Crone advised the parents that she intended to change the goal
to adoption. After visiting the parents and advising them of the
decision, father asked her to leave. As she was leaving, mother
assaulted Crone and threatened to kill her.
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Crone testified that father failed to follow through with
further counseling at Catholic Charities. Crone also asked the
parents to return to SCAN for more parenting classes, which they
did from March 26 until May 7, after which "they refused to go
anymore." According to Crone, the parents failed to see that
Catherine attended weekly speech therapy sessions, despite
arrangements being made for her to get there in a Medicaid van.
Johnny also missed sessions with therapist Maureen Mayer.
When asked if any other social service agencies had been
involved with the family prior to RDSS's involvement, Crone
testified that when Catherine and Christina were born in Caroline
County, "they were removed for a very short time," and Johnny and
Anthony "were living in the aunt's house."
Crone observed visitations after the children were removed in
November 2000. The parents "had poor interaction" with the
children. Specifically, Crone noted that father was "very rough
with the children" and had to be redirected several times. Crone
also had concerns that father refused to address apparent problems
with his use of alcohol.
Crone noted that Johnny, although a child, "was often given a
caretaker role." It appeared to Crone that he "wasn't getting his
emotional needs met." Crone recalled that mother and father often
argued and screamed at each other, causing the children anxiety.
Dr. Jennifer Paul performed psychological evaluations of
Anthony and Christina. Anthony, who was five years old at his
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June 2001 evaluation, "was very inattentive." He jumped on things
and had a hard time sitting still. His "attentional skills were
so poor," he was unable to complete an intelligence test intended
for children his age. Therefore, Dr. Paul could not determine his
IQ. His child development inventory indicated significant
developmental delays. Dr. Paul gauged Anthony's overall abilities
"at the 2 year, 4 month level," two years, eight months below his
chronological age. Dr. Paul posited that Anthony's "developmental
delays may be related both to cognitive delays/limitations and
also to previous environments." She was "unclear how much
stimulation he received in his previous environments and whether
or not he received enough stimulation to promote normal
development." "Behavorial reports and observations" were
"consistent with a diagnosis of Attention Deficit Hyperactivity
Disorder [ADHD]" According to Dr. Paul, "Anthony will need
continued stimulation both at home and through a structured school
program."
Christina's August 2001 test results indicated that she "has
significant developmental delays," especially in speech, for which
she needs immediate therapy. Like Anthony, Christina suffers from
ADHD. She tested at least one year below her peers in every
category. Dr. Paul said that Christina needed structure and
consistency at home and at school and that a behavioral
modification system should be implemented. Dr. Paul recommended
that both children be taken to a pediatrician or psychiatrist to
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discuss the possibility of using medication to control effects of
their ADHD condition. She also made several other recommendations
for the parents, foster parents, and support personnel working
with Anthony and Christina.
In September 2001, Jenny Money took over for Crone as the
foster care case worker. She testified that Johnny had been in
foster care since November 2000 and is doing well in school and in
the foster home. Christina, Catherine and Anthony are in a
therapeutic foster home and are "doing marvelously." Money
explained that therapeutic foster parents are trained to deal with
a child's special needs. All three younger children demonstrated
delayed development in speech. Christina also "suffers from
underlying anxiety," and she and Anthony have been diagnosed as
having ADHD. In addition, Anthony shows signs of mental
retardation. All three younger children see a psychiatrist for
medication and participate in speech therapy. Anthony began
taking medication in August 2001, and Christina began taking
medication in October 2001. Money stated that the children still
need supervision and structure.
When Money took over in September 2001, she reminded the
parents about the services already in place. Money also
recommended that mother participate in an anger management class
and that father attend Alcoholics Anonymous (AA). Money directed
father to obtain documentation of AA meetings he attended.
According to Money, the parents have attended fourteen out of a
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possible 132 parenting classes offered during the time RDSS was
involved in their case, making their attendance rate 11%. Mother
never attended anger management class, and father failed to
provide written verification that he attended any AA meetings.
Father told Money the AA meetings depressed him.
When Money first got the case, the parents' home was
condemned because of lead paint and electrical and plumbing
deficiencies. The parents moved in with friends, then lived in a
hotel for a few weeks until moving into the house they now occupy.
Money observed several visits between parents and the children and
recalled how Johnny would appear to stay by himself, isolated and
ignored. Usually some problem would occur with one of the younger
children, such as Anthony choking after eating too many donuts or
Catherine spilling an overfilled cup of drink on herself.
Although Money referred father and mother "to family
counseling at Commonwealth Catholic Charities," the parents
decided to meet with Robert Osborn for counseling. Initially,
Osborn told Money he did not believe the parents could cope with
children with special needs. However, according to Money, he
later altered that opinion and currently feels the parents could
maintain the children in their home "as long as there were a lot
of supportive services in the home."
Sharon Jacobs has been the foster mother for Christina,
Catherine and Anthony since December 3, 2001. Jacobs explained
how she and her husband were able to successfully alter the
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children's behavior by establishing a system of rules and
rewards. Jacobs noted that the children appear happier and more
responsive. She attributes their progress to the daily routine
and structure she and her husband offer in their therapeutic
foster home setting. There have been no incidents of biting
since the placement.
Robert Osborn, a licensed clinical social worker, testified
that he first met with the parents in October 2001 and has been
seeing them weekly. Initially, both parents exhibited symptoms
of "affective disorders," mother suffering from depression and
father from bipolar disorder. Both parents are currently taking
antidepressants, and their conditions are stabilized. Although
Osborn was not concerned about the children's safety if they
returned home, he felt "there's still room for growth in their
parenting skills." Osborn opined they may pay less attention to
the children's emotional needs and show inconsistency in their
care. According to Osborn, the parents have made much progress
since their first meeting in October 2001. He acknowledged that
the parents failed to advise him they had psychological
evaluations done in May 2000 and that access to those results
would have been helpful in their treatment. Osborn felt the
parents might be able to be more effective with the children in
terms of incorporating what they have learned if they were able
to practice what they have learned for three or four months.
Osborn noted that children with ADHD need "consistency,
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support," medication, and structure. According to Osborn, the
parents would need two to three months "to get back into the
swing of parenting and be able to incorporate [their] new
information." Osborn noted that both parents came from
dysfunctional family situations, making it more difficult for
them to overcome their past and become effective parents.
By order dated February 28, 2002, the trial court deferred
making a determination "until early August 2002" in order to
allow the parents, who had recently been diagnosed and
prescribed medication and therapy, to show that they could
effectively remedy the situation causing removal and take care
of their children. The trial court directed RDSS to "provide
appropriate services to determine if reunification of this
family can be accomplished" and to "file a report of its efforts
and any reaction thereto and results thereof" before the August
hearing.
RDSS's Report of Reunification Attempt
Pursuant to the trial court's February 28, 2002 order,
Money prepared and submitted a report "documenting the efforts
made by [RDSS] to attempt to reunify" the parents with the
children. Money first changed the one and one-half hour
bi-weekly supervised visits to unsupervised visits. The visits
took place in a playroom at the RDSS office; a two-way mirror
enabled RDSS staff to observe. If, during those visits, the
parents "could demonstrate that they could keep the children
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safe, . . . then the visits could begin to take place at the Van
Buren's home."
By April 2002, visitation took place weekly and was
increased to two hours. In May 2002, "the visits were changed
back from weekly to bi-weekly, as [the three younger children's]
behavior had declined dramatically, and Mr. and Mrs. Van Buren
were not demonstrating appropriate parenting skills." "On many
occasions," Money observed situations where the parents "have
not been able to keep the children safe, supervise them, or
discipline them appropriately." For example, "[d]uring
unsupervised visits, Anthony has bitten his siblings on several
occasions and he has fallen off the back of the couch and bumped
and scratched his head." Moreover, father "has been observed
spitting on the children, and walking out in traffic while
holding Christine and Katherine's hands." Money noted that
father "does not follow the instructions that [she] makes
regarding the visits, [and] he spends little time actually
interacting with the children, as he uses the telephone, leaves
the room to smoke cigarettes, or" complains about the children's
foster care case. Money detailed several inappropriate comments
made to the children by mother and father and noted that mother
"has not shown any ability to discipline the children." It
"appear[ed]" to Money that the parents "rely on Johnny [the
oldest child] to discipline his younger siblings." The parents
bring no toys or games with which to engage the children during
- 15 -
the visits, instead promising them there will be toys when they
return home.
Money wrote that father "will not accept redirection, or he
will deny that he responded in a particular way." For example,
he "attempted to schedule visits with Johnny through the foster
mother, rather than scheduling them through [Money]." When
confronted with the issue, he denied making such a request to
the foster mother. Another time, father "went against [Money's]
recommendations and allowed" the mother, who had a suspended
driver's license, to transport Johnny and him to an event in the
city. Money documented other instances in which father acted
against her advice and "attempted to deceive [her]."
Money reported that Anthony, Catherine and Christina's
"foster parents . . . have noticed a decline in the children's
behavior since the visits have been unsupervised." Following
the visits, "the children are much more aggressive" and they
experience nightmares. Christina "wets the bed for several
nights following visits" and has "temper tantrums." After one
visit at which father spit water on the children, "the children
were spitting on one another." Following a visit on May 22,
2002, Anthony's foster mother noted "6 small bruises on his
back." Anthony said "that Johnny had touched his back" and that
"he had bitten" Johnny and his mother because they "were holding
him tightly." Money observed several situations where the
parents failed to properly discipline or supervise the children,
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either ignoring the behavior or merely saying, "No," often to no
avail, but refusing to actively address the situation.
Money spoke with Debra Robbins, the therapist for the three
younger children, and reported Robbins' opinion that father
"would not be able to attend the children's needs, due to his
own limitations."
The Second Hearing
On August 7, 2002, the parties appeared before the trial
court. Prior to the hearing, Money submitted her report. Four
witnesses testified, including Osborn, the clinical social
worker working with the parents. The evidence established that
father suffers from bipolar disorder, an "emotional disorder,"
and mother suffers from depression. Osborn noted that these
"chronic conditions" can be treated in the long-term only if the
parents regularly obtain and take their medication.
The guardian ad litem for Johnny, the oldest child, advised
the trial court that Johnny's "connection is very strong with
the [three younger] siblings," and that connection is "clearly
the stronger one." Johnny lives with different foster parents
than the three siblings. Johnny's guardian ad litem reported
that Johnny expressed that he did not desire to return home if
his siblings did not return. The guardian noted that Johnny's
connection with his siblings would be cut off completely if
Johnny remained at home alone with the parents and the parental
rights to the younger siblings were terminated and they were
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adopted. However, if Johnny remains in another foster home or
is adopted by another family, there is a possibility that
visitation among the siblings could be arranged.
In light of Money's report documenting the parents'
inability to safely care for the younger three children in a
controlled setting for a short period of time, and because they
are doing so well in their foster home, the younger children's
guardian ad litem recommended that "it's in their best interest
to end this and move forward with the adoption."
The trial court ruled as follows:
I do find by the appropriate standard
clear and convincing evidence that it is
appropriate that there be termination of
parental rights of all four children. I
have no question in my mind whatsoever about
the appropriateness of that decision, with
the exception of Johnny.
That one, I think Mr. Yeaker [Johnny's
guardian ad litem] has set out at least
three of the most obvious options. There's
not one of them in that whole group that is
a great one. I think the best one and the
most likely to result in a long-term benefit
for [Johnny] is going to be terminate and
attempt to get him into an adoptive home.
That needs to be done soon. He's eleven
years old now. Time is running out for him.
The trial court directed the attorney for RDSS to draft an
order reflecting his ruling.
The final order dated September 3, 2002, contains the
following:
The Court having heard and considered
the evidence and arguments of counsel FINDS
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by a preponderance of the evidence that the
goal of adoption is in the best interests of
[the children]. The Court also FINDS by
clear and convincing evidence that it is in
the best interests of [the children] to
terminate the parental rights of Michael and
Cassie Van Buren and that Michael and Cassie
Van Buren have failed to remedy the
conditions, which led to [the children's]
placement and continuation in the custody of
the Richmond Department of Social Services.
Therefore the Court ORDERS that the
residual parental rights of Michael and
Cassie Van Buren are terminated, the goal of
adoption is approved and the Richmond
Department of social Services is granted the
rights to place the child[ren] for adoption.
ANALYSIS
"When addressing matters concerning a child, including the
termination of a parent's residual parental rights, the paramount
consideration of a trial court is the child's best interests."
Logan v. Fairfax County Dep't of Human Development, 13 Va. App.
123, 128, 409 S.E.2d 460, 463 (1991). "'In matters of a child's
welfare, trial courts are vested with broad discretion in making
the decisions necessary to guard and to foster a child's best
interests.'" Id. 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).
Sufficiency of the Evidence
Appellant contends the evidence was insufficient to support
the termination under either subsection of Code § 16.1-283(C).
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The trial court never entered an order terminating father's
rights to his stepson, Johnny Collins, therefore, there is nothing
for father to appeal in regards to Johnny. See supra note 2
(dismissing appeal in Record No. 2620-02-2).
As to the termination of father's parental rights to his
three younger children, although the trial court did not
specifically state under which subsection of the statute it
found termination of appellant's parental rights to be
appropriate, RDSS's evidence and the language used by the trial
court make clear that the termination occurred pursuant to Code
§ 16.1-283(C)(2). Thus, we limit our sufficiency analysis to
Code § 16.1-283(C)(2), which provides that a court may terminate
a parent's residual parental rights where a child has been
placed in foster care as a result of court commitment if the
court finds, based upon clear and convincing evidence, that (1)
it is in the best interests of the child; (2) that the parents
without good cause have been unwilling or unable within a
reasonable period of time not to exceed twelve months to remedy
substantially the conditions which led to the child's foster
care placement; and (3) that reasonable and appropriate efforts
of social, medical, mental health or other rehabilitative
agencies have been made to such end.
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
- 20 -
established. It is intermediate, being more than a mere
preponderance, but . . . [less than] a reasonable doubt . . . ."
Gifford v. Dennis, 230 Va. 193, 198 n.1, 353 S.E.2d 371, 373 n.1
(1985).
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). Although "[t]he termination of residual parental rights
is a grave, drastic and irreversible action," Helen W. v.
Fairfax County Dep't of Human Dev., 12 Va. App. 877, 883, 407
S.E.2d 25, 28-29 (1991), we "'presume[] [the trial court has]
thoroughly weighed all the evidence [and] considered the
statutory requirements,'" Logan, 13 Va. App. at 128, 409 S.E.2d
at 463 (quoting Farley v. Farley, 9 Va. App. 326, 329, 387
S.E.2d 794, 796 (1990)).
The evidence, viewed in the light most favorable to RDSS,
proved, by clear and convincing evidence, both (1) that RDSS
made "reasonable and appropriate efforts" to help father remedy
the conditions "which led to or required continuation of the
child[ren]'s foster care placement" and (2) that appellant,
without good cause, failed "to substantially remedy" those
conditions. In reaching this conclusion, the court was required
by Code § 16.1-283(C)(2) to "take into consideration the prior
efforts of such agencies to rehabilitate the parent."
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The evidence established that RDSS began working with
father and mother in July 1999 after it obtained custody of the
children. RDSS submitted a foster care plan with a goal of
returning the children home, first by March 2000, then by
December 2000. During the children's temporary placement in
foster care, RDSS assisted mother and father in obtaining help
so as to improve their parenting skills and regain possession of
their children. The case worker referred mother to a parents
support group and father to agencies to evaluate and treat him for
substance abuse and anger management. In April 2000, RDSS
contracted with Wilkerson's to provide in-home assistance, and in
May 2000, RDSS had mother and father evaluated by a psychologist.
The evaluation revealed that father has below average cognitive
abilities, he is emotionally immature, and he may suffer from
neurological impairment, alcohol dependence, and depression. The
evaluation recommended a psychiatric evaluation for possible
medical intervention. The evaluation found father to be rigid,
simplistic, and limited in solving problems.
Eleven months after removing the children and providing
services to help the parents be more effective and diligent,
RDSS returned the children to the parents for a trial placement.
Five months later, in November 2000, RDSS again removed the
children based on a founded complaint of lack of supervision and
deteriorating behavior by the children, which the parents were
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unable to control or ameliorate. The children were again placed
in foster care homes.
The children had spent eleven months in foster care during
the first removal and another twenty months after the second
removal. During that thirty-one month period, three different
case workers worked on the case. Throughout that period, RDSS
provided services and referrals and made "reasonable and
appropriate efforts" to help the parents remedy the conditions
which both "led to" and "required continuation of" the
children's foster care placement in 1999 and 2000.
By the time of the February 2002 hearing, the parents,
Anthony and Christina had been diagnosed and were taking daily
medication to manage their respective conditions. Therefore,
the trial court directed RDSS to attempt to reunify the family a
third time and determine if they could parent the children
effectively and safely now that Anthony, Christina, father and
mother were being treated. RDSS tried to expand visitation in
hopes of reunifying the parents and the children; however, the
case worker reported several instances in which father and
mother acted inappropriately, failed to maintain control of the
children, and/or demonstrated an inability to keep them safe.
The record established that RDSS provided services and
resources for an extended period of time, well over the
twelve-month period. Despite those services, father and mother
failed to make reasonable progress towards eliminating
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substantially the conditions which led to the children's foster
care placement. See Code § 16.1-283(C)(2).
"'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 [or her]
responsibilities.'" Richmond Dept. of Soc. Servs. v. L.P., 35
Va. App. 573, 584, 546 S.E.2d 749, 754-55 (2001) (quoting
Kaywood v. Halifax County Dep't of Soc. Servs., 10 Va. App. 535,
540, 394 S.E.2d 492, 495 (1990)).
Waiting indefinitely to find out if the
[parents] might someday remedy the
conditions that resulted in [the children's]
foster care placement only prolongs the lack
of stability and permanency in [the
children's] li[ves], with no guarantee or
even reasonable likelihood that the
[parents] will ever be able to adequately
care for [the children] in the future."
Id. at 585, 546 S.E.2d at 755.
Moreover,
a parent's mental deficiency that is of such
severity that there is no reasonable
expectation that such parent will be able
within a reasonable period of time befitting
the child's best interests to undertake
responsibility for the care needed by the
child in accordance with the child's age and
stage of development does not constitute
"good cause" under Code § 16.1-283(C)(2).
Id.
The children are doing well, living with foster families
who love them and provide safe, clean environments and
appropriate supervision. That situation contrasts sharply with
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the chaotic and unclean conditions they repeatedly experienced
with the parents. Being ADHD, Anthony and Christina require
care and supervision that father and mother cannot now provide.
RDSS presented clear and convincing evidence that termination is
in the children's best interests and it is not reasonably likely
that the conditions which led to the children's neglect or abuse
can be substantially corrected or eliminated to allow them to
return within a reasonable period of time.
Standard of Proof
Father contends the trial court based its findings on an
incorrect standard. He bases his argument on a statement in
RDSS's closing argument and on language used in the draft of the
final order prepared by RDSS.
At the August 2002 hearing, counsel for RDSS summarized Code
§ 16.1-283(C)(2) as allowing termination if parents are "unwilling
or unable within any reasonable period of time not to exceed 12
months . . . to remedy the situation." The final order, which the
trial court directed RDSS to prepare, states that the trial court
found by clear and convincing evidence that the parents "have
failed to remedy the conditions" which led to removal and
placement by RDSS.
On appeal, father points out that RDSS misstated the law in
its closing argument and in its draft of the final order in that
the statute requires a showing that a parent need only "remedy
substantially," not remedy completely, "the conditions which led
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to or required continuation of the child's foster care
placement." Code § 16.1-283(C)(2) (emphasis added).
Father failed to raise before the trial court the argument
he makes here. Rule 5A:18 provides, in pertinent part, that
"[n]o ruling of the trial court . . . will be considered as a
basis for reversal unless the objection was stated together with
the grounds therefor at the time of the ruling." Thus, we will
not consider a claim of trial court error as a ground for
reversal "where no timely objection was made." Marshall v.
Commonwealth, 26 Va. App. 627, 636, 496 S.E.2d 120, 125 (1998).
The purpose of these rules is to ensure that the trial court and
opposing party are given the opportunity to intelligently
address, examine, and resolve issues in the trial court, thus
avoiding unnecessary appeals and reversals. Lee v. Lee, 12
Va. App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc).
Father acknowledges that he did not preserve these issues
but asks us to invoke the "ends of justice" exception to Rule
5A:18 in order to consider the merits of his claims. "[T]he
ends of justice exception is narrow and is to be used sparingly
. . . ." Brown v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d
8, 10 (1989). "In order to avail oneself of the exception, a
[party] must affirmatively show that a miscarriage of justice
has occurred, not that a miscarriage might have occurred."
Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269,
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272 (1997). The trial error must be "clear, substantial and
material." Brown, 8 Va. App. at 132, 380 S.E.2d at 11.
In expressing its decision, the trial court found "by the
appropriate standard clear and convincing evidence" to support
its decision to terminate father's residual parental rights.
Moreover, we found in the previous discussion that RDSS
presented clear and convincing evidence to support the trial
court's decision. That evidence proved that the parents failed
to remedy substantially the conditions that caused the children
to be removed and placed with RDSS. Specifically, the evidence
established that, after more than two and one-half years of RDSS
assistance, the parents were unable to safely and appropriately
supervise the children and take care of their special needs.
Therefore, the record does not reflect any reason to invoke the
good cause or ends of justice exceptions to Rule 5A:18.
Accordingly, the decisions of the circuit court with regard
to Catherine, Christina and Anthony are summarily affirmed.
Record No. 2618-02-2, affirmed.
Record No. 2619-02-2, affirmed.
Record No. 2621-02-2, affirmed.
Record No. 2620-02-2, dismissed.
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