COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Clements
Argued at Chesapeake, Virginia
JESSIE LEE WALKER, JR.
MEMORANDUM OPINION * BY
v. Record No. 0505-00-1 JUDGE JEAN HARRISON CLEMENTS
DECEMBER 19, 2000
VIRGINIA BEACH DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
Arthur C. Ermlich, Jr. (Berry, Ermlich,
Lomax & Meixel, on brief), for appellant.
Karla Carter Haynes, Assistant City Attorney
(Leslie L. Lilley, City Attorney, on brief),
for appellee.
Jessie Lee Walker, Jr., appeals from a decision terminating
his residual parental rights to his child on petition by the
Virginia Beach Department of Social Services. He contends the
trial court erred in finding the evidence sufficient to terminate
his parental rights. We do not agree and affirm the trial court's
decision.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts necessary to a
disposition of this appeal.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
The trial court terminated Walker's residual parental rights
to his child, Jessie Lee Walker, III, pursuant to subsections (B)
and (C)(2) of Code § 16.1-283. 1 Walker argues that termination of
his residual parental rights was improper because the Department
of Social Services failed to prove that the requirements of those
subsections were met. Specifically, he claims that the Department
failed to prove by clear and convincing evidence that he was
unwilling or unable to remedy within a reasonable time the
situation that led to his child being put into foster care. He
asserts that, unlike the child's mother, "he was not given any
services, and there were no efforts [by the Department] to enable
him to properly care for his child" and that, unlike the child's
mother, he "complied with every request made by the Department of
Social Services."
"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 Dev., 13 Va. App. 123, 128,
409 S.E.2d 460, 463 (1991). "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
1
The natural mother's residual parental rights also were
terminated, but she is not a party to this appeal.
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"thoroughly weighed all the evidence, considered the statutory
requirements, and made its determination 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 Social Servs., 3 Va. App.
15, 20, 348 S.E.2d 13, 16 (1986).
Code § 16.1-283 establishes the procedures and grounds under
which a court may order the termination of residual parental
rights. Under Code § 16.1-283(B), the residual rights of a parent
of a child placed in foster care because of parental neglect or
abuse may be terminated only if the court finds by clear and
convincing evidence that (1) termination is in the best interests
of the child; (2) the neglect or abuse suffered by the child
presented a serious and substantial threat to the child's life,
health, or development; and (3) it is not reasonably likely that
the conditions which resulted in the neglect or abuse can be
substantially corrected or eliminated to allow the child's safe
return to his parent within a reasonable period of time.
Under Code § 16.1-283(C)(2), the residual parental rights of
a parent of a child placed in foster care may be terminated only
if the court finds by clear and convincing evidence that
(1) termination is in the best interests of the child; (2) the
parent, without good cause, has been unwilling or unable within a
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reasonable period not exceeding twelve months to substantially
remedy the conditions that led to or required the continuation of
the child's foster care placement; and (3) the parent failed to
remedy the conditions notwithstanding the reasonable and
appropriate efforts of rehabilitative agencies.
On appeal, we view the evidence in the light most favorable
to the prevailing party below, the Department of Social Services,
and grant to that evidence all reasonable inferences fairly
deducible therefrom. Logan, 13 Va. App. at 128, 409 S.E.2d at
463. So viewed, the evidence established that Jessie, the child
in question, was born on May 11, 1998. Prior to his emergency
removal in February 1999, the police responded to the home of
Jessie's parents at least thirty times for domestic violence,
although apparently none of those incidents involved the child.
Between August 1998 and February 1999, the Department of Social
Services contacted Jessie's family at least five times because of
concerns about domestic violence, substance abuse, and the care
and supervision of the child.
On the last such occasion, on February 2, 1999, Walker had
called 911 because the baby was crying and then inexplicably left
the child with rescue squad personnel "to go to the store." When
he did not return and could not be found, Jessie was taken into
protective custody by the Department of Social Services. The
juvenile and domestic relations district court found that Walker
had neglected the child by abandonment.
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The day after Jessie's placement in foster care, a child
protective services investigator went to Walker's house, but
Walker refused to give her the medicine that Jessie had been
taking or to discuss Jessie's removal with her. Shortly
thereafter Walker checked himself into the Veterans Administration
Hospital.
A military veteran suffering from post-traumatic stress
disorder and "polysubstance dependence," Walker stated upon his
admission to the hospital that he was unable to correctly take his
medications because there were too many. He further reported
suffering from insomnia and depression and having "flashbacks
which last all day and include auditory and visual hallucinations
of, among other things, a man in black pajamas whom he wishes to
kill and people speaking Vietnamese."
Walker was in and out of the hospital for much of the year
following Jessie's emergency removal and placement in foster care.
In fact, he was discharged from the hospital after a stay of
nearly three months only a week before trial in February 2000. He
admitted at trial that he had had problems with his medications
during the previous year but stated that they had been readjusted
and were no longer a problem. He offered no evidence, however, to
document or otherwise support that assertion. He testified he was
currently taking six or seven different medications, two or three
of which he could not name and did not know what they were. He
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also admitted he drank alcohol but denied he had "an illegal drug
problem."
As part of its service plan, the Department of Social
Services gave Walker referral sources for substance abuse
treatment, anger management, and parenting skills. The Department
also tried to arrange for visitation for Walker but was precluded
from doing so when the juvenile court disallowed such visitation
because of threats he had made. The court also ordered, again
because of Walker's threats, that he have no contact with the
social worker assigned to the case. The Department of Social
Services, therefore, was limited to contacting him and
coordinating services with him by telephone.
Walker testified at trial that he had taken anger management
classes and a parenting class and had participated in a substance
abuse evaluation while in the Veterans Administration Hospital, in
accordance with the foster care service plan. However, he
produced no documentation or other evidence to show that he had
participated in, much less successfully completed, any such
treatment programs. Nor did the hospital records obtained by the
Department of Social Services verify his successful completion of
any such programs. Furthermore, while Walker did eventually, when
ordered to by the court, allow the Department of Social Services
access to his hospital records, he refused to execute a release
allowing the social worker to speak with hospital personnel about
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the treatment he had received or the programs he had attended in
the hospital.
Walker testified at trial that he was capable of taking care
of his child. When asked by the trial judge how he could care for
the child, he replied, "I can hire somebody to take care of him."
Walker testified his annual income was $4,600, and, according to
his hospital records, he lacked the ability to manage his
financial affairs. Moreover, Walker admitted to his social worker
that he was unable to take care of Jessie.
In its order, the trial court found that Jessie was "in
foster care as a result of court commitment based on neglect by
abandonment." The trial court further found by clear and
convincing evidence that termination was in the child's best
interests, that the neglect suffered by the child
presented a serious and substantial threat to
the life, health or development of the
[c]hild, . . . that it was unlikely that the
conditions which resulted in the neglect can
be substantially corrected or eliminated so
as to allow the [c]hild's safe return to
[Walker] within a reasonable period of time
and . . . that [Walker], without good cause,
[has] been unable or unwilling within a
reasonable period not exceeding twelve months
from the date the [c]hild was placed in
foster care to remedy substantially the
conditions which led to the [c]hild's foster
care placement, notwithstanding the
reasonable and appropriate efforts of social,
medical, mental health or other
rehabilitative agencies to such end . . . .
We find that the evidence in this case supports the court's
findings. It is apparent from the record that Walker is unable to
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care for a young child and was unable or unwilling to remedy
within a reasonable time the conditions that led to his child's
placement in foster care, notwithstanding the Department of Social
Services' efforts to that end. Thus, we cannot say that the trial
court's finding by clear and convincing evidence that the
conditions of subsections (B) and (C)(2) of Code § 16.1-283 have
been established was plainly wrong or without evidence to support
it. Accordingly, we affirm the trial court's decision.
Affirmed.
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