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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