COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Coleman
KELLY WILSON
MEMORANDUM OPINION *
v. Record No. 0270-02-1 PER CURIAM
SEPTEMBER 10, 2002
JAMES CITY COUNTY
DIVISION OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND
COUNTY OF JAMES CITY
Samuel Taylor Powell III, Judge
(Edward Janes Bell, III, on brief), for
appellant.
(Frank M. Morton, III, County Attorney;
Greg H. Dohrman, Assistant County Attorney;
Alice K. Twiford, Guardian ad litem for
Idalia Wilson; Frances S. Taylor, Guardian ad
litem for Marquise Wilson, on brief), for
appellee.
Kelly Wilson (appellant) appeals the decision of the trial
court terminating his parental rights to two of his minor
children, Marquise and Idalia. Upon reviewing the record and
briefs of the parties, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
BACKGROUND
"Upon appellate review, we must review the facts in the light
most favorable to the party prevailing below." Richardson v.
Richardson, 30 Va. App. 341, 349, 516 S.E.2d 726, 730 (1999).
On January 15, 2002, the trial court conducted a hearing on
the matter. Cherrye Cole, who was formerly employed with the
Gloucester County Division of Social Services (GC DSS), testified
that she worked with the family in 1998 after one of appellant's
children was placed in foster care. That child is not the subject
of this appeal. At that time, GC DSS developed a foster care
service plan that provided, among other things, that the entire
family should attend family counseling and establish a stable home
environment. The plan also provided for visitation and required
that appellant attend parenting classes. Cole testified that
appellant did not attend counseling or complete parenting class.
Cole stated that the family had a continuing problem with the
inability to maintain a stable home and sometimes lacked food and
electricity.
In 1998, the family moved to James City County. On March 3,
1999, the James City County Division of Social Services (JCC DSS)
filed a petition for an emergency removal order regarding Marquise
and Idalia. The children were with appellant when he was arrested
and taken to jail on March 2, 1999. The children's mother was
also in jail at that time for a felony child neglect offense. In
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addition, appellant has been convicted for the assault and battery
of a child.
The children have been in foster care since April 1999.
Melanie White of JCC DSS testified that the initial foster care
service plan for the children had a goal of return home. Both
parents were in jail at the time, and appellant was scheduled to
be released from jail first. Therefore, the plan primarily
addressed services for appellant upon his release from jail.
Appellant was required to secure housing for the family, maintain
steady employment, and participate in family counseling. He was
also required to enroll in and complete a parenting education
program, anger management and domestic violence programs, and a
program on the needs of children with attention deficit
hyperactivity. White testified that appellant did not complete
the services outlined in the plan. White also stated that
appellant had two founded complaints with the county for lack of
supervision.
While they were in foster care, appellant visited the
children sporadically and was often late for his visits. In
September 2000, appellant returned to jail. White testified it
was "emotionally traumatizing" for the children to visit him in
jail. Appellant has telephoned Marquise about once every two
weeks at his current foster home, but his overall compliance with
the services has been "very minimal."
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White testified that appellant's housing has been transient
and unstable. Appellant did not complete family counseling
classes, parenting classes, anger management classes or children
with special needs classes. Appellant attended several classes
for a nurturing family program while he was incarcerated. He has
not maintained steady employment.
White testified that when Marquise first came to foster care,
he had numerous behavior problems. He has been diagnosed with
Bipolar disorder, Dysthymia, ADHD, and Oppositional Defiant
Disorder. He has taken several types of medications to manage his
behavior. Marquise was placed with his current foster mother,
Clara Brown, in 1999, and his behavior has improved since that
time.
Brown testified Marquise is "better now" and has been seeing
therapists. She stated he is a "totally different person" than he
was when he first arrived in her home, and he has exhibited more
"control" over his behavior. Brown stated that Marquise is more
difficult to control after he visits with appellant or his mother.
Idalia entered foster care when she was three years old. She
was "highly sexualized," was attending counseling sessions, and
was taking medications for behavior management. She has been
diagnosed with Oppositional Defiant Disorder and appears to have
suffered sexual abuse. White stated that Idalia is intelligent,
but she has high emotional needs. She needs "continual
modification interventions." Idalia has been in therapy
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concerning sexualized behavior issues. A psychological evaluation
of Idalia dated December 5, 2000 recommended that, due to
allegations of appellant striking Idalia, appellant should have
only supervised visitation with Idalia until a parenting capacity
evaluation is performed.
Amy Burks, Idalia's foster parent for about five months,
testified that she has had to retrieve Idalia from school when she
has exhibited behavioral problems, which usually occurs just after
she visits with her parents. She stated that Idalia exhibits the
behavior by jumping up and down and hitting her head against the
wall. Burks stated that Idalia "does great at home," and Burks
participates in Idalia's counseling sessions. Burks testified
that Idalia's behavior has improved while she has lived with Burks
and that she is interested in adopting Idalia.
White opined that it was in the best interests of the
children to terminate appellant's parental rights. The children
have been in foster care for about three years. White stated they
needed stability, security, safety and nurturing. The current
foster homes are meeting those needs for the children, and the
foster parents are interested in adopting the children. White
stated that appellant has not completed the services necessary to
meet the children's needs. The guardians ad litem for the
children also recommended termination of appellant's parental
rights.
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Appellant, who has seven felony convictions, testified that
he attended a parenting class. However, he has not taken classes
concerning the special needs of the children because of his work
schedule. Appellant was living with his parents at the time of
the hearing and has not maintained his own residence since 1998.
Appellant acknowledged that he is currently not in a position to
take care of the children. He has been incarcerated about
seventeen months of the approximately three years the children
have been in foster care. Appellant has not talked with the
children's counselors or teachers and only learns about Idalia's
progress when he attends a court hearing. Appellant testified
that JCC DSS has not given him information on the children.
The trial court found that, pursuant to Code
§ 16.1-283(C)(2), it is in the best interests of the children to
terminate appellant's parental rights and that the requirements of
the statute have been met. The trial court further found that
appellant has not had consistent housing and has not completed the
special programs needed to take care of the children.
ANALYSIS
Under Code § 16.1-283(C)(2), the trial court can terminate a
party's parental rights if the parent has "been unwilling or
unable within a reasonable period of time not to exceed twelve
months from the date the child was placed in foster care to remedy
substantially the conditions which led to or required continuation
of the child's foster care placement."
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Marquise and Idalia have spent almost three years in foster
care. For seventeen months of that time period, appellant was
incarcerated.
[W]hile long-term incarceration does not,
per se, authorize termination of parental
rights or negate the Department's obligation
to provide services, it is a valid and
proper circumstance which, when combined
with other evidence concerning the
parent/child relationship, can support a
court's finding by clear and convincing
evidence that the best interests of the
child will be served by termination.
Ferguson v. Stafford County Dep't of Soc. Servs., 14 Va. App. 333,
340, 417 S.E.2d 1, 5 (1992).
Furthermore, during the three years the children have been in
foster care, appellant has failed to participate in most of the
recommended programs that would teach him how to meet the special
needs of the children and to rectify the conditions that
perpetuate the children in foster care. In addition, appellant
admitted that he is not currently in a position to take care of
the children. Moreover, the children are improving while in
foster care.
"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." Farley v. Farley, 9
Va. App. 326, 328, 387 S.E.2d 794, 795 (1990). On appeal, we
presume that the trial court "thoroughly weighed all the evidence,
considered the statutory requirements, and made its determination
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based on the child's best interests." Id. at 329, 387 S.E.2d at
796. Furthermore, "[w]here, as here, the trial court heard the
evidence ore tenus, its finding is entitled to great weight and
will not be disturbed on appeal unless plainly wrong or without
evidence to support it." Martin v. Pittsylvania County Dep't of
Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986).
The evidence in this case supports the trial court's
findings. It is apparent that appellant is unable to care for the
children and is unable to remedy within a reasonable time the
conditions which led to his children's placement in foster care.
Thus, we cannot say that the trial court's finding by clear and
convincing evidence that the conditions of Code § 16.1-283(C)(2)
have been established was plainly wrong or without evidence to
support it. Accordingly, we summarily affirm the decision of the
trial court. See Rule 5A:27.
Affirmed.
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