COURT OF APPEALS OF VIRGINIA
Present: Judge Elder, Senior Judges Bray and Overton
LYNCHBURG DIVISION OF SOCIAL SERVICES
MEMORANDUM OPINION *
v. Record No. 0704-02-3 PER CURIAM
OCTOBER 1, 2002
WANDA L. FENIMORE
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
J. Leyburn Mosby, Judge
(Joyce M. Coleman, Senior Assistant City
Attorney, on briefs), for appellant.
Appellant submitting on briefs.
(Christopher Billias, on brief), for
appellee. Appellee submitting on brief.
The Lynchburg Division of Social Services (the division)
appeals the decision of the trial court denying the division's
petition to terminate Wanda Fenimore's (mother) residual parental
rights in her son, Jackson, and rejecting the division's foster
care plan and attendant permanency plan of adoption. The division
argues the trial court erroneously (1) failed to approve the
petition, (2) found mother was remediating the conditions that
prompted loss of custody, and (3) concluded that restoration of
custody in mother was in Jackson's best interests. We agree and
reverse the decision.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
On appeal, we view the evidence and all the reasonable
inferences in the light most favorable to appellee as the party
prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,
391 S.E.2d 344, 346 (1990).
BACKGROUND
Near midnight on March 11, 2000, police responded to a
telephone call that advised mother had left her two children home
alone. Upon arrival at the residence, officers found Jackson, age
one, and his older brother, age eight, inside and without adult
supervision. Jackson's brother reported mother had departed the
house at approximately 7:30 p.m. "to go to a night club." The
officers immediately notified the division, and the division
assumed emergency custody of the children. Mother did not contact
the division and inquire into the whereabouts of her children
until 9:00 a.m. the following day.
Subsequent investigation by social worker Eleanor Maxham
revealed trash, dirty clothing, food, garbage and feces throughout
the house, together with an offensive odor. Donald Miller, the
city building inspector, visited the residence the day following
the emergency removal and declared it unfit for human habitation.
Seeking to assist mother resolve the family's needs, foster
care worker Lisa Bailey offered mother extensive services in
parenting, substance abuse treatment, mental health counseling,
housing, employment, and medication management. In response,
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mother twice began parenting classes but failed to complete the
program on each occasion. She initially attended an outpatient
pre-treatment program for substance abuse but did not pursue
scheduled "continuing care" sessions to address her mental
health problems, housing issues, employment, and alcohol
dependency. Mother acknowledged a history of depression and the
prior use of Depakote, Prozac, and Effexor, sometimes together
with alcohol, and attempted suicide on October 13, 2001.
Following the condemnation of her home in March 2000,
mother resided with friends for several weeks, later relocating
to an apartment for five months and then to a YWCA until evicted
for nonpayment of rent in July 2001. She next resided with her
boyfriend and his family, but moved in December 2001. During
the nineteen months Jackson was in foster care, mother was
employed in fourteen different jobs for periods ranging from two
days to five months and was admittedly "fired" on several
occasions.
ANALYSIS
Pursuant to Code § 16.1-283(B), the residual
parental rights to a child who has been found by
the court to be abused and neglected and placed
in foster care may be terminated if the court
finds, based upon clear and convincing evidence,
that it is in the best interests of the child and
that:
(1) The neglect or abuse suffered by such
child presented a serious and substantial threat
to his life, health or development, and
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(2) It is not reasonably likely that the
conditions which resulted in such neglect or
abuse can be substantially corrected or
eliminated so as to allow the child's safe return
to his parent or parents within a reasonable
period of time.
Jenkins v. Winchester Dep't of Soc. Servs., 12 Va. App. 1178,
1184, 409 S.E.2d 16, 20 (1991).
Neglect
The testimony of Maxham, Miller, and police officer P.A.
Cooper, corroborated by photographs and other evidence, clearly
proved the residence provided Jackson by mother was littered
with feces and garbage, insect-infested, foul smelling and
otherwise unfit for human habitation. Mother left Jackson and
his older brother, children ages one and eight, respectively,
alone in the house overnight and did not return and inquire into
the children's whereabouts until the following morning.
Manifestly, such circumstances presented a serious risk to
Jackson's health and safety.
Correction of Conditions
The division offered mother extensive services to assist in
reuniting the family, while protecting the children. However,
during the nineteen months Jackson remained in foster care,
mother failed to substantially remedy the circumstances that
prompted Jackson's removal. She failed to complete mental
health and substance abuse counseling, obtain adequate housing
or stable employment, or cooperate in other rehabilitative
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efforts by social, medical or other agencies to reduce or
eliminate the neglect or abuse of Jackson. Accordingly, the
record does not support the trial court's finding that mother
made substantial efforts to remedy the conditions leading to
foster care.
Best Interests of the Child
"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 Servs., 13
Va. App. 123, 128, 409 S.E.2d 460, 463 (1991). "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." Kaywood v.
Halifax County Dep't of Soc. Servs., 10 Va. App. 535, 540, 394
S.E.2d 492, 495 (1990).
Here, mother clearly failed to demonstrate a willingness or
ability to alter the circumstances that necessitated Jackson's
foster care. Nevertheless, the trial court determined mother
was making substantial efforts to remedy such conditions and
that termination of her parental rights was not in Jackson's
best interests, a decision plainly wrong and without support in
the record.
We, therefore, reverse the decision of the trial court,
approve termination of mother's parental rights, and the
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division's attendant foster care and permanency plan, with the
goal of adoption.
Reversed and final judgment.
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