COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Clements
Argued at Richmond, Virginia
MARY AGNES JOSEPH TERRY
MEMORANDUM OPINION * BY
v. Record No. 3322-01-2 JUDGE LARRY G. ELDER
JUNE 18, 2002
RICHMOND DEPARTMENT OF
SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge
Robert P. Dickinson for appellant.
Kate O'Leary, Assistant City Attorney
(Evelyn B. Meese, Assistant City Attorney;
Jack M. Fulton, Guardian ad litem for the
infant children; Office of the City Attorney,
on brief), for appellee.
Mary Agnes Joseph Terry (appellant) appeals from a decision
terminating her residual parental rights to her two daughters,
C. and D., under Code § 16.1-283(C)(2). On appeal, she contends
the termination was erroneous both (1) because the Richmond
Department of Social Services (RDSS) failed to offer her the
services required by Code § 16.1-283(C)(2), and (2) because the
evidence was insufficient to prove that appellant, without good
cause, failed to substantially remedy the conditions that
resulted in the placement of the children in foster care. We
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
hold the evidence was sufficient to prove both that RDSS offered
appellant the services necessary to help her remedy the
conditions that resulted in the placement and continuation of
the children in foster care and that appellant failed, without
good cause, to substantially remedy the conditions which caused
that continuation. Thus, we affirm the involuntary termination
of appellant's parental rights to C. and D.
"Code § 16.1-283 embodies the statutory scheme for the
termination of residual parental rights in this Commonwealth."
Lecky v. Reed, 20 Va. App. 306, 311, 456 S.E.2d 538, 540 (1995).
Subsection (C)(2), the subsection under which the trial court
terminated appellant's parental rights in this case, requires
proof, by clear and convincing evidence, (1) that the
termination is in the best interests of the child, (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. 1 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.'"
1
Appellant does not contest the sufficiency of the evidence
to prove that termination was in the best interests of C. and D.
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Martin v. Pittsylvania County Dep't of Soc. Servs., 3 Va. App.
15, 21, 348 S.E.2d 13, 16 (1986) (quoting 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). 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 evidence in the record, 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 appellant 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 had been working with
appellant since 1994, when she inadequately supervised her
ten-month-old baby, C. C. narrowly avoided drowning when she
fell head-first into a bucket of water and detergent, and she
suffered permanent developmental delays as a result. RDSS took
C. into custody at that time. When appellant was incarcerated
on criminal neglect charges stemming from C.'s injuries, she
signed an entrustment agreement placing her one-month-old
daughter D. in the custody of RDSS, as well. An evaluation of
appellant conducted by Licensed Clinical Psychologist Beverly
Chamblin after C.'s near drowning revealed that appellant was
mildly mentally retarded with an IQ of 60, had "no indication of
higher potential," and required long-term services in the home
for parenting and household management.
Based on Dr. Chamblin's recommendations and case worker
Rosalyn Johnson's observations, RDSS provided appellant with
help in performing routine personal hygiene and household
chores. RDSS also attempted to find assistance for appellant in
managing her affairs and raising her children. Although RDSS
arranged for appellant to live with a relative in New York or
enter a residential placement program in Richmond, appellant
declined to move to New York and disqualified herself from
participating in the residential program in Richmond when she
chose to get married instead. RDSS recommended the children be
placed for adoption, but when a court disapproved of that
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recommendation, RDSS was forced to attempt to return the
children to appellant. Johnson testified that she had already
referred appellant to mental retardation services as well as
in-home services, thereby exhausting all avenues at her disposal
for "improv[ing] [appellant's] functioning." Johnson referred
appellant to RDSS's stabilization services, and appellant
continued to receive in-home services. RDSS approved returning
the children to appellant's home on a trial basis, and six
months later, appellant regained legal custody. Appellant
stipulated that RDSS provided her with "excellent services"
between April 1994 and March 1997.
Prior to the return of C. and D. to appellant's home in
1997, appellant was charged with criminal neglect of A., her
niece, who was severely burned in hot water while under
appellant's care. In 1999, appellant violated a condition of
her probation on that charge when she refused to attend
parenting classes, and RDSS was forced to resume custody of C.
and D. when appellant was incarcerated on the probation
violation. Appellant made arrangements to leave C. and D. with
a male friend, but appellant left the children without legal
guardianship, and her male friend was unable to care for the
children properly. Once the children came back into the custody
of RDSS, it was discovered that at least one of them had been
sexually abused while in appellant's custody.
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We recognize that it was appellant's second incarceration,
at least in part, which "led to" the children's second foster
care placement and that incarceration alone is insufficient
grounds for terminating one's parental rights. See, e.g., Cain
v. Roanoke Dep't of Soc. Servs., 12 Va. App. 42, 44, 402 S.E.2d
682, 683 (1991). Here, however, more than appellant's 1999
incarceration "required continuation of the child[ren]'s foster
care placement." Code § 16.1-283(C)(2) (emphasis added).
Appellant's incarceration merely brought to the attention of
RDSS other facts which, when viewed in light of appellant's
history with RDSS, "required [that] continuation." Id.; see
Harris v. Lynchburg Div. of Soc. Servs., 223 Va. 235, 242, 288
S.E.2d 410, 413 (1982) (holding that mother's four-year history
of neglectful treatment prior to her incarceration permitted
termination of her parental rights while she was in prison).
First, the reason behind appellant's incarceration, her
failure to take parenting classes as a condition of probation
following her conviction for neglecting her niece, A., related
directly to appellant's ability to parent C. and D. Second,
appellant failed to provide adequately for the children's
well-being during her incarceration both because the person to
whom she entrusted them was unable to care for them and because
she failed to provide for the children's legal guardianship.
Third, the fact that one or both of the children had been
sexually abused while in appellant's custody indicated that
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appellant had failed to keep them safe prior to her
incarceration. Fourth, the evidence established that
appellant's children had special needs and that appellant
required ongoing assistance to parent them effectively and
maintain a household.
The evidence, viewed in the light most favorable to RDSS,
established that it made "reasonable and appropriate efforts" to
help appellant remedy the conditions which both "led to" and
"required continuation of" the girls' foster care placement in
1999. Code § 16.1-283(C)(2). A repeat psychological evaluation
performed in 2000 indicated that appellant's intellectual and
functional abilities had not improved since her last testing in
1994, and on the recommendation of Dr. Chamblin, the evaluating
psychologist, RDSS attempted to reinstitute the services which
had allowed appellant to improve her functioning and regain
custody in 1997. However, Dr. Chamblin opined that, whereas
appellant had been "accepting of supervision" and receptive to
training in 1994, appellant was more "defensive and guarded" in
2000.
In keeping with Dr. Chamblin's analysis, the evidence
established that appellant declined almost all services offered
by RDSS following her release from jail in late 1999 or early
2000. 2 After appellant underwent the psychological evaluation in
2
The only services appellant accessed were
employment-related, and the evidence established that appellant
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June 2000, RDSS, through the Richmond Behavioral Health
Authority (RBHA), "offered services to [appellant,] and she
declined because she felt she did not need any. RBHA was
offering daily in-home support services such as money
management/payee assistance, parenting skills and mental
retardation services." RDSS filed a foster care plan with a
goal of adoption in July 2000 because no relatives suitable for
placement had been found, appellant was unable to parent
successfully without supervision, and appellant had not accessed
the services that were offered to her. Despite the possibility
of the termination of her parental rights, appellant did not
access any in-home services prior to the district court
termination hearing in March 2001.
The evidence appellant offered showing payment of $205 to
the "City of Richmond, Collection Division," for water tended to
indicate appellant was still having trouble managing her
finances. As case worker Shannon Crone testified, appellant
received social security disability benefits, and appellant's
ongoing difficulty in paying her bills "was never [a question
of] her [not] having enough . . . money . . . ." As of the
circuit court hearing in September 2001, appellant testified
worked only sporadically. We do not, however, consider
appellant's employment status to be of great importance to the
termination of her parental rights. Although case worker Davis
testified appellant was referred for assistance in maintaining
employment, this was not listed as a requirement in the
applicable foster care plans.
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merely that she was "[i]n the process" of obtaining mental
retardation services from RBHA, services she had failed to
access for over a year.
Thus, the evidence established that RDSS, through RBHA,
offered appellant all services it thought necessary to permit
her to regain custody but that she declined almost all of those
services. RDSS was not required "to force its services upon an
unwilling or uninterested parent." Harris, 223 Va. at 243, 288
S.E.2d at 415. Further, the failure of RDSS or RBHA to ask
appellant to participate in the children's counseling was not
dispositive. No evidence established that such participation
would be beneficial to appellant or her daughters in remedying
the conditions requiring foster care placement. Further,
Dr. Chamblin opined that appellant would not benefit personally
from psychotherapy. Finally, as outlined above, RDSS and RBHA
offered appellant a variety of other services which she failed
to access.
Additional evidence established that appellant was not able
to keep her children safe or to parent them effectively without
the assistance offered her. When appellant was released from
jail in late 1999 or early 2000, she initially maintained close
contact with her children, and regular visits "were going well."
However, when case worker Kelly Davis allowed an overnight visit
in appellant's home, appellant again demonstrated her inability
properly to supervise and protect her children. Appellant left
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the girls with her boyfriend while she went to work, and
appellant's boyfriend sexually abused C. and threatened D. C.
"said she tried to tell her mother, [appellant,] but [appellant]
would not listen to [C.]." As a result of that incident,
appellant's subsequent visits were to be supervised.
When a new case worker, Shannon Crone, permitted appellant
an unsupervised visit with the children to take them to a
Christmas parade, appellant violated Crone's specific
instruction that "it was just to be [appellant] and the girls."
In violating that instruction, appellant allowed the girls to be
in the presence of D.'s father, Robert Terry, who was alleged to
have sexually abused D. previously. Appellant's supervised
visits with the girls were sporadic after that, from January to
March 2001. When appellant notified Crone in late February 2001
that she would be working on Saturdays and requested a different
visitation schedule be established, Crone attempted to contact
appellant, but appellant "never returned" Crone's call to
arrange visitation.
Other evidence established that the girls had special needs
and that appellant required ongoing assistance to parent them.
C. was an "extremely hyperactive" child with "borderline mental
retardation," and C. required "[c]onsiderably more" supervision
than the average child "just in regards to safety." The
evidence also established that C. and D., victims of sexual
abuse, exhibited "sexualized behavior" that required a "higher
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level" of parenting skills than required by the average child.
Finally, C.'s therapist testified that C. and D. together
exhibited "distractibility . . . the most extreme [she had] ever
seen" in twelve years of practice. Dr. Chamblin testified that
appellant required ongoing assistance to parent the children,
and even appellant's expert, social worker Dan Jacobson, agreed
appellant would require ongoing assistance in "[a]dapting to
providing [for] the changing needs of an adolescent . . . who
has been sexually abused." Appellant, on the other hand,
testified that she no longer needed any help parenting her
children, a conclusion clearly belied by the evidence.
This case, as presented on appeal, is not one in which the
parent's mental deficiency, standing alone, rendered the parent
"unable," "without good cause," to "substantially remedy" the
conditions requiring foster care placement. Code
§ 16.1-283(C)(2) (emphasis added); 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 severe and likely permanent mental
deficiency which prevented parent from caring for child did not
constitute good cause preventing court from terminating parental
rights under Code § 16.1-283(C)(2)). Although appellant's
children had special needs and appellant's disability clearly
had a negative impact on her ability to care for them, the
evidence established that the termination of appellant's
parental rights resulted from her "unwilling[ness]" to recognize
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her limitations and to accept the services and guidance offered
by RDSS to help her "substantially remedy the conditions which
led to or required continuation of the child[ren]'s foster care
placement." Code § 16.1-283(C)(2) (emphasis added). As
Dr. Chamblin testified, "Many people with an IQ of 60[,
appellant's IQ,] function very, very well . . . . There are two
issues: The intellectual function, and how the person uses it."
In summary, the evidence established that RDSS offered
appellant a panoply of services designed to assist her in
regaining custody of her children. Appellant declined the bulk
of those services until her parental rights had already been
terminated by the district court, and she showed a continuing
inability to protect her children. The evidence, viewed in the
light most favorable to the RDSS, established that her children
had special needs which a parent of normal intellectual function
would have difficulty meeting and that appellant could not hope
to parent adequately without the assistance she repeatedly had
refused. Thus, the evidence supported the drastic action of
terminating her parental rights to C. and D. pursuant to Code
§ 16.1-283(C)(2), and we affirm the ruling of the trial court.
Affirmed.
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