Christopher S. Fayette, Sr. v. Stafford Co. DSS

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Bumgardner and Frank
Argued at Alexandria, Virginia

CHRISTOPHER S. FAYETTE, SR.
MEMORANDUM OPINION * BY
v. Record No. 1424-99-4 JUDGE ROBERT P. FRANK
AUGUST 15, 2000
STAFFORD COUNTY DEPARTMENT
OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF STAFFORD COUNTY
James W. Haley, Jr., Judge

Cynthia L. Law (Louis S. Nuzzo; John L.
Mahoney; Hunzeker & Lyon, on brief), for
appellant.

Hugh P. Fisher, III, Deputy County Attorney
(Office of the County Attorney, on brief),
for appellee.

Christopher S. Fayette, Sr. (appellant) appeals the decision

of the trial court terminating his parental rights to his son,

Christopher S. Fayette, Jr. Appellant contends the trial judge

erred in finding that: (1) there was clear and convincing

evidence that all appropriate and reasonable efforts were taken by

the social agencies to aid appellant in remedying the conditions

leading to the child's foster care placement, (2) there was clear

and convincing evidence that appellant's failure to maintain

continuing contact with and to provide or substantially plan for

* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
the future of the child for a period of six months was without

good cause, and (3) there was clear and convincing evidence that

appellant's failure or inability to make substantial progress

towards the elimination of the conditions that led to or required

the continuation of Christopher's foster care was without good

cause. We disagree and, therefore, affirm the trial court's

judgment.

I. BACKGROUND

Christopher S. Fayette, Jr. (Christopher) was born to Stacy

Walker (Walker) and appellant on September 27, 1992. On October

26, 1992, the Richmond County Juvenile and Domestic Relations

District Court granted Walker and appellant joint custody of

Christopher, placing primary residence with Walker. By April

1993, Christopher lived with Walker in Stafford County, and

appellant lived in Richmond County. On May 7, 1993, appellant

telephoned the Stafford County Department of Social Services

(Department) to express his concern about Walker's mistreatment

of Christopher. Appellant never indicated a desire to visit

Christopher or seek his custody during this conversation.

On August 11, 1994, the Stafford County Juvenile and

Domestic Relations District Court (juvenile court) transferred

legal custody of Christopher to the Department through entry of

an emergency removal order and directed that Christopher be

placed in foster care. Christopher has been in foster care

since the entry of the emergency removal order.

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 A foster care worker for the Department, Elizabeth Crouch

(Crouch), attempted to contact appellant by phone on August 16,

1994, but the phone number had been disconnected. Crouch then

contacted Walker to inquire about appellant's whereabouts, but

Walker would only say appellant's last known address was in

Tappahannock. Finally, the Department searched its computer

records to identify an address or phone number for appellant,

but the search proved unsuccessful.

Then, Crouch prepared a series of foster care service plans

for Christopher. The first two plans had a goal of returning

Christopher to live with his mother, but she failed to adhere to

the requirements of the plan. Crouch then filed a plan on

August 11, 1996, and its goal was for Christopher to be adopted.

On December 18, 1996, appellant came to the Department to

speak with Crouch about Christopher, whom appellant had not seen

since Christopher was six or seven months old. He brought with

him an Administrative Support Order concerning Christopher's

child support. The order was dated April 19, 1996, and listed

Christopher's custodial parent's address as "Stafford CO

Government Center 1300 Courthouse Rd PO Box 7 Stafford VA 22555

0007." The order clearly indicated that the county, not Walker,

had custody of Christopher.

Appellant's reappearance prompted Crouch to make

arrangements to facilitate the development of a relationship

between Christopher and his father. The first step in this

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process was for appellant to undergo an evaluation by a

licensed, professional counselor, Dr. Susan D. Rosebro

(Rosebro). This evaluation was scheduled to begin on January

16, 1997, but appellant did not attend.

Appellant next came to the Department on June 3, 1997, to

enter into a permanent entrustment, which would terminate his

parental rights to Christopher. Jane Namiot, the Department's

supervisor of foster care workers, refused to execute the

agreement during the visit because appellant was agitated and

did not appear prepared to surrender his parental rights.

On November 3, 1997, the juvenile court terminated Walker's

parental rights to Christopher, but refused to terminate

appellant's parental rights. The juvenile court further

instructed the Department to develop a new foster care service

plan with a goal of reuniting Christopher with appellant. This

plan was dated January 5, 1998.

Compliance with the new plan by appellant was minimal. The

plan outlined weekly visits between appellant and Christopher,

but appellant only attended sixteen of the fifty-six potential

visits. Additionally, no visits occurred between February 18,

1998 and September 2, 1998. The plan required appellant to

undergo a Parenting Evaluation by Rosebro, paid for by the

Department, but he never completed the evaluation. The plan

prescribed parenting classes through the local Department of

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Social Services where appellant resided, but he never attended

any of the classes.

Appellant never signed a release to allow the Department to

undertake the required criminal records and child protective

services checks. Appellant testified he was convicted of

assault and battery against Walker in December 1993, attempted

second degree robbery in 1986, and uttering in 1979.

Further, appellant did not allow Department workers to make

home visits as outlined in the plan. He did not attend required

group sessions on domestic violence. While he did attend the

required substance abuse evaluation, he did not follow through

on the evaluation's recommendations for treatment. He arrived

intoxicated for an alcohol screening performed by substance

abuse counselor Deborah Suggs. Appellant incurred $19,588.35 in

child support arrearages for Christopher. His child support

payments have been current since May 1998 as the result of a

garnishment on his wages. Finally, appellant did not remain in

contact with the Department or provide the Department with a

reliable phone number and address.

The lack of success with the foster care service plan

prompted the Department to file a new plan on December 14, 1998.

The goal of the plan was for the adoption of Christopher, rather

than placing him with his father. On December 15, 1998, the

Department filed a petition to have appellant's residual

parental rights to Christopher terminated.

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 On March 3, 1999, the juvenile court approved the new

foster care service plan and terminated appellant's residual

parental rights on March 4, 1999. Appellant appealed, and on

June 7, 1999, the trial court approved the foster care service

plan with a goal of adoption and terminated appellant's residual

parental rights.

II. ANALYSIS

Under familiar principles we view [the]
evidence and all reasonable inferences in
the light most favorable to the prevailing
party below. Where, as here, the court
hears 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 Department of Social Services, 3

Va. App. 15, 20, 348 S.E.2d 13, 16 (1986) (citation omitted).

"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 Department of Human

Development, 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991)

(citations omitted). "'[T]he rights of parents may not be

lightly severed but are to be respected if at all consonant with

the best interests of the child.'" Ward v. Faw, 219 Va. 1120,

1124, 253 S.E.2d 658, 661 (1979) (quoting Malpass v. Morgan, 213

Va. 393, 400, 192 S.E.2d 794, 799 (1972)). "Code § 16.1-283

embodies '[t]he statutory scheme for the . . . termination of

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residual parental rights in this Commonwealth.' This 'scheme

provides detailed procedures designed to protect the rights of

the parents and their child,' balancing their interests while

seeking to preserve the family." Lecky v. Reed, 20 Va. App.

306, 311, 456 S.E.2d 538, 540 (1995) (citations omitted).

Appellant argues the trial judge erred in finding that the

Department made appropriate and reasonable efforts to assist him

in following the foster care service plan. "'Reasonable and

appropriate' efforts can only be judged with reference to the

circumstances of a particular case. Thus, a court must

determine what constitutes reasonable and appropriate efforts

given the facts before the court." Ferguson v. Stafford County

Department of Social Services, 14 Va. App. 333, 338-39, 417

S.E.2d 1, 4 (1992). "The law does not require the division to

force its services upon an unwilling or disinterested parent."

Barkey v. Commonwealth, 2 Va. App. 662, 670, 347 S.E.2d 188, 192

(1986) (citation omitted).

Appellant contends the Department provided no assistance in

overcoming the biggest hurdle he faced in following the foster

care service plan--his lack of affordable transportation. This

lack of transportation began with appellant's 1993 conviction

for driving under the influence. The conviction resulted in

$800 in fines, which remain unpaid. Nonpayment of these fines

resulted in the continued suspension of appellant's operator's

license. Without question, appellant was aware of this handicap

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when he agreed to the foster care service plan. Without an

operator's license and with no public transportation available,

he initially relied on securing rides from friends for the

visitations, which took place approximately 50 miles away. The

Department also provided appellant with information on available

taxi service, but appellant deemed the two dollar per mile

charge for the taxi to be too expensive. Appellant's failure to

pay the $800 in fines necessary to recover his license and his

willingness to agree to a foster care service plan that required

significant travel on his part created his transportation

difficulties. Having created the transportation problem,

appellant now cannot fault the Department for not providing

enough assistance in overcoming this obstacle.

Appellant argues he had no money to pay the fines necessary

to restore his driver's license. Yet, he testified that he has

worked regularly at H. Warshaw and Sons since March 30, 1998.

Prior to that time, he worked at Wal-Mart. The trial judge

described appellant's transportation difficulties:

Well, sir, you could have gotten your
driver's license anytime. You haven't had
one since 1994 [1993]; it's been five years,
and you couldn't get together eight hundred
dollars you said, apparently, to pay - to
pay off your fines and costs. But you could
agree to pay a hundred and fifty dollars a
week to live in a motel a week, spend money
on alcohol certainly, spend money on
fishing. But what you did willfully refuse
and the other things you didn't do, it
wasn't worth eight hundred bucks to come up
and see your son is what it boils down to.

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 You wanted to spend that money on other
things, because you, yourself, said
transportation was a problem.

Appellant also contends the Department exacerbated his

transportation problems by keeping Christopher in a foster home

approximately an hour away from appellant's residence. The

trial testimony indicated that Christoper is happy with his

foster family and he considers them to be his parents. Removing

Christopher from this family and creating yet another upheaval

in his life would not have been in the child's best interests.

Therefore, the Department's failure to relocate Christopher

closer to appellant was not inappropriate or unreasonable.

It is also important to note that appellant failed to

satisfy the one aspect of the foster care service plan that did

not require transportation to another locality. He never

attended a single parenting class despite the Department's

amendment to the foster care service plan, which allowed him to

attend the classes in the locality of his residence.

Appellant argues the trial judge erred in finding there was

clear and convincing evidence that appellant's failure to

maintain continuing contact with and to provide or substantially

plan for the future of Christopher for a period of six months

was without good cause. Appellant attributes his failure to

follow the foster care service plan to the Department's failure

to make reasonable and appropriate efforts in resolving his

transportation problems. He argues the lack of transportation

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and phone service constitute good cause for failure to remain in

contact with his child for the six-month period. As discussed

above, Fayette's transportation difficulties resulted from his

own actions, not those of others. Appellant's lack of phone

service also was self-created. Appellant was employed on a

fairly regular basis and should have been able to afford the

cost of using a pay phone or installing phone service for the

purpose of calling his son. As noted above, the trial court

specifically found that appellant chose to use his money for

other priorities, which did not include contacting his son.

The conclusions of the fact finder on issues of witness

credibility "may only be disturbed on appeal if this Court finds

that [the witness'] testimony was 'inherently incredible, or so

contrary to human experience as to render it unworthy of

belief.'" Robertson v. Commonwealth, 12 Va. App. 854, 858, 406

S.E.2d 417, 419 (1991) (quoting Fisher v. Commonwealth, 228 Va.

296, 299-300, 321 S.E.2d 202, 204 (1984)). In all other cases,

we must defer to the conclusions of "the fact finder[,] who has

the opportunity of seeing and hearing the witnesses." Schneider

v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 737 (1985)

(citations omitted).

Appellant also argues the foster care service plan is

inherently unfair. Not only does the evidence strongly suggest

the service plan is not inherently unfair, but appellant entered

into the agreement willingly. Thus, there is clear and

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convincing evidence that appellant's six-month hiatus from

adhering to the requirements of the foster care service plan was

without good cause.

Appellant further argues the trial court erred in finding

there was clear and convincing evidence that his failure to make

substantial progress towards the elimination of the conditions

that led to or required the continuation of Christopher's foster

care was without good cause. Appellant again cites the

Department's failure to assist him with his transportation and

telephone problems as good cause for his failure to make

significant progress towards the elimination of the conditions

that necessitated the continued foster care. The evidence, as

discussed above, establishes that appellant was at fault for his

difficulties, not the Department.

Appellant also cites the Department's failure to notify him

of Christopher's placement at an earlier date as a reason for

his failings. The latest appellant could have become aware of

Christopher's placement was December 18, 1996, when he spoke

with Crouch. At the December 18, 1996 appointment, appellant

had the Administrative Child Support Order that listed the

address of Christopher's custodial parent as the Department.

The Department previously made repeated attempts to contact

appellant by calling his phone number, by contacting Walker, and

by conducting a computer search. "It is clearly not in the best

interests of a child to spend a lengthy period of time waiting

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to find out when, or even if, a parent will be capable of

resuming his responsibilities." Kaywood v. Halifax County

Department of Social Services, 10 Va. App. 535, 540, 394 S.E.2d

492, 495 (1990). The Department could not afford further delay

in placing Christopher with an adoptive family, while it waited

for appellant to reappear and declare an interest in his son.

The Department's inability to locate appellant earlier cannot be

considered good cause for appellant's inability to correct the

conditions that led to Christopher's continued foster care.

Therefore, the evidence in the record fully supports the

finding of the trial court that the Department presented clear

and convincing evidence to terminate appellant's residual

parental rights to Christopher.

Accordingly, the decision of the trial judge is affirmed.

Affirmed.

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