Thelma Ruth Taylor v. Washington County Dept of S S

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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