COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Agee
Argued at Alexandria, Virginia
THELMA RUTH TAYLOR
MEMORANDUM OPINION * BY
v. Record No. 1074-02-3 JUDGE LARRY G. ELDER
NOVEMBER 12, 2002
WASHINGTON COUNTY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Charles B. Flannagan, II, Judge
Sage B. Johnson (Johnson & Johnson, P.C., on
brief), for appellant.
Edward G. Stout (Bressler, Curcio & Stout, on
brief), for appellee.
Patricia E. Smith (Bradford & Smith, P.C.,
on brief), Guardian ad litem for the minor
child.
Thelma Taylor (appellant) appeals a decision of the trial
court terminating her parental rights to her son, J., pursuant to
Code § 16.1-283(C). On appeal, appellant contends the evidence
was insufficient to support the termination. We hold clear and
convincing evidence supported the termination, and we affirm.
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, DSS's evidence
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
and the tenor of the trial court's ruling make clear that the
termination occurred pursuant to Code § 16.1-283(C)(2). That
subsection requires proof, by clear and convincing evidence, (1)
that the termination is in the best interests of the child, 1 (2)
that "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) that, despite those services, the parent has
failed, "without good cause," to remedy those conditions "within
a reasonable amount of time not to exceed twelve months from the
date the child was placed in foster care." Code
§ 16.1-283(C)(2).
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. 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
1
Appellant does not appear to contest the sufficiency of
the evidence to prove that termination was in J.'s best
interests.
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, 13 Va. App. 123, 128, 409 S.E.2d 460, 463
(1991).
We are mindful of the principle that "[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), but 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 court is
not required to state its findings of fact and conclusions of
law with specificity as long as the record contains evidence to
support its decision.
The evidence in the record, viewed in the light most
favorable to the Commonwealth, proved, by clear and convincing
evidence, both (1) that DSS made "reasonable and appropriate
efforts" to help appellant remedy the conditions "which led to
or required continuation of the child's foster care placement"
and (2) that appellant, without good cause, failed "to
substantially remedy" those conditions within a reasonable
period of time. 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."
The evidence established a finding of abuse/neglect was
made when J. was only two months old. Although appellant
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recognized her need for assistance in caring for J. and
requested services from DSS within a week of his birth, she was
a teenager with limited intellectual capacity and was unable to
follow instructions regarding her handling and comforting of J.
Appellant failed to support the newborn's neck and was so rough
with him that two different DSS employees, Eleanor Thayer and
Robin Anderson, had "grave concerns" for J.'s safety and "the
potential for shaken baby syndrome." Anderson explained to
appellant that this behavior "could hurt [J.'s] brain."
Appellant exhibited some understanding of the warning because
her "behavior would change" and "she would be more gentle" with
J. "for a couple of minutes," but then appellant would revert to
the same dangerous behavior. Anderson and Thayer cautioned
appellant repeatedly about this risk, but their efforts caused
no lasting change in appellant's behavior. On May 16, 2000, DSS
removed J. from appellant's home and placed him in foster care
based on the "[s]ignificant risk" to J. "for trauma because of
the physical abuse" Anderson had observed.
Although the immediate cause of J.'s removal was physical
abuse in the form of appellant's rough handling, appellant also
had demonstrated difficulty with other parenting skills, such as
how often to feed, burp and bathe J., where to put him to sleep
safely, and what developmental milestones to foster and watch
for. A parenting assessment indicated J.'s return to
appellant's home would place him "at significant risk because
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[appellant] displayed an inability to comprehend and
consistently apply appropriate parenting skills." DSS developed
a foster care service plan with a goal of returning J. to
appellant which attempted to address these problems. The plan
required appellant to "learn how to consistently provide
suitable child care in areas such as handling [and] feeding," to
"secure employment, transportation, and budgeting skills in
order to support herself," and to "maintain stable housing and
needed baby equipment." Pursuant to the plan, appellant
received ongoing homemaker services from DSS's Eleanor Thayer,
parenting classes, transportation and employment services.
Beginning in November 2000, DSS permitted appellant to have
overnight visits in her home with J., and that visitation
gradually increased. In January 2001, J. began to stay in
appellant's home from Monday morning until Friday afternoon.
Thayer continued to provide homemaker services at that time.
Although appellant was cooperating with services, DSS determined
the homemaker services were insufficient to meet appellant's
needs. Beginning February 22, 2001, DSS replaced the homemaker
services with parent aide services, which allowed the aide to
"go [into appellant's home] more often and over a longer period
of time." Thereafter, with the exception of a two-week period
in July, aide Ruth Atkins was in appellant's home on a daily
basis through August 23, 2001.
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At first, appellant worked well with Atkins and "really
tried." The report of a court-appointed special advocate (CASA
advocate) concluded that appellant needed ongoing support in
parenting J. but that she was able to care for J. as long as she
received that support. The advocate recommended that J. be
returned to appellant. DSS arranged to return physical custody
of J. to appellant in May 2001, but at about that time,
appellant stopped trying to cooperate with DSS's services. DSS
returned J. to appellant's physical custody on May 16, 2001, but
at the request of DSS, the court entered a protective order to
"give [DSS] some leverage with [appellant] with regard to
cooperation." Although appellant admitted that her lawyer, her
social worker and her parent aide all reviewed the terms of the
protective order with her on multiple occasions and explained
the consequences of violating it, appellant "took it as a joke."
The protective order required, inter alia, (1) that
appellant "shall take the job through the Supported employment
program as soon as it becomes available"; (2) that appellant
shall continue to cooperate with all services and service
providers; (3) that J. shall not be transported in any vehicle
operated by appellant's mother, Cathy West, or any unlicensed
driver; and (4) that appellant shall permit no more than one
hour of supervised contact per week between J. and West.
Appellant had reported that West resented appellant because
appellant was a product of incest, that West was a drug addict
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who had exchanged sex for drugs and had taken financial
advantage of appellant, and that West's former boyfriend was
J.'s father, a fact confirmed by paternity testing. In
addition, appellant had allowed West to drive J. to and from
daycare, even though appellant knew West had no driver's license
or auto insurance.
In late May 2001, Social Worker Dorinda Eggers learned that
West was residing with appellant and J. in violation of the
protective order and that appellant was likely to be evicted
from her subsidized housing because her lease prohibited
overnight guests. Although appellant received an eviction
notice in June 2001, she failed to vacate the premises and made
no other arrangements for housing before she was physically
evicted on September 18, 2001. Despite her impending eviction,
appellant refused the "supported employment" position she was to
begin on September 4, 2001. Appellant also was uncooperative
with Atkins after entry of the protective order; by August 23,
2001, appellant "got real hostile" and said "she did not want
[Atkins] there" anymore.
When appellant was evicted on September 18, 2001, sixteen
months from the date on which J. was first placed in foster
care, DSS removed J. from appellant's custody a second time.
When appellant still had failed to make adequate housing
arrangements ten days later, DSS sought the termination of
appellant's parental rights. Social Worker Eggers testified
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that appellant's eviction was only one of several factors which
led DSS to seek termination. Eggers expressed a broader concern
about appellant's "inability" "to adequately parent" and "to
look ahead . . . as any parent should be able to do in order to
protect their child from danger." In addition to housing and
employment issues, the evidence established that appellant was
not feeding J. adequately and was not "doing the things that
[DSS was] asking her to do, such as reading to [J.] to stimulate
his speech." When J. was returned to foster care in September
2001 at 18 months of age, he could say only two words, one of
which was "bitch," and he demonstrated aggressive behavior
toward other children. Within his first month in foster care,
appellant's aggression decreased and the eighteen-month-old
gained five pounds. Finally, despite repeated assistance with
employment and budgeting, appellant had been employed only
sporadically because she sought jobs she appeared intellectually
incapable of performing and refused a full-time "supported
employment" position with benefits and training which was within
walking distance of her residence.
Eggers said that, although no one service could teach a
parent to adequately anticipate all dangers, appellant had
received a variety of services which provided help in this area,
including Welcome Home Baby, homemaker services, parenting
classes and in-home parent aide services. Despite these
services, Eggers, Thayer and Atkins testified that appellant's
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parenting skills had not improved since they began working with
her, and Eggers "did not know what more services [to] provide
. . . that would help to overcome the problems that [appellant
and J.] were having." In addition, appellant had ceased
cooperating with the myriad services offered. When the CASA
advocate again reviewed appellant's case, she agreed with
Eggers' termination request based on appellant's refusal to
cooperate with services and her inability to parent J. without
those services.
The evidence supported a finding that DSS offered appellant
23 different services designed to address, to the extent
possible, all areas of concern and that, when appellant ceased
cooperating with these services, she was unable to parent
effectively. DSS was not required "to force its services upon
an unwilling or uninterested parent." Harris v. Lynchburg Div.
of Soc. Servs., 223 Va. 235, 243, 288 S.E.2d 410, 415 (1982).
As the trial court found, even after appellant's receipt of
these services, she was "still at square one" in regard to her
"ability to provide the basics for [J.]" without ongoing
assistance.
Thus, as the trial court further observed, whether
appellant's ongoing problems "resulted from a mental block on
following instructions or simply an inability to perform and
make judgments and act," the evidence supported a finding that
appellant, without good cause and for a period exceeding twelve
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months, failed "to substantially remedy" those conditions "which
led to or required continuation of the child's foster care
placement, notwithstanding the reasonable and appropriate
efforts of social, medical, mental health or other
rehabilitative agencies to such end." Code § 16.1-283(C)(2);
see Richmond Dep't of Soc. Servs. v. L.P., 35 Va. App. 573,
582-85, 546 S.E.2d 749, 753-55 (2001) (holding that parent with
severe and likely permanent mental deficiency which prevented
parent from caring for child could, nevertheless, have parental
rights terminated and that such mental deficiency did not
constitute good cause preventing termination under Code
§ 16.1-283(C)(2)).
For these reasons, we affirm the termination of appellant's
parental rights.
Affirmed.
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