COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
ANTONIO MILLER, SR.
MEMORANDUM OPINION *
v. Record No. 0320-00-2 PER CURIAM
JULY 25, 2000
RICHMOND DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Randall G. Johnson, Judge
(Robert D. Jacobs; Morrissey, Hershner &
Jacobs, on brief), for appellant.
(Kate O'Leary, Assistant City Attorney;
Michael R. Talbert, Guardian ad litem for
the minor children, on brief), for appellee.
Antonio Miller, Sr. appeals from a decision terminating his
parental rights of his two sons, Antonio Miller, Jr. and Andre L.
Miller. The trial court found that the Richmond Department of
Social Services (RDSS) presented clear and convincing evidence
establishing the statutory requirements set out in Code
§ 16.1-283(C)(1) and (2) for termination of Miller's parental
rights. Miller argues the trial court erred in explicitly or
implicitly finding that: (1) RDSS proved by clear and convincing
evidence that Miller, without good cause, failed to maintain
contact with and to provide or substantially plan for the future
of the children for a period of six months after the children's
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
placement in foster care; (2) RDSS proved by clear and convincing
evidence that Miller was unable or unwilling within a reasonable
period of time not to exceed twelve months from the date his
children were placed in foster care to remedy substantially the
conditions which led to or required continuation of the children's
foster care placement; (3) it is in the best interests of the
children that Miller's parental rights be terminated; (4) RDSS
proved by clear and convincing evidence that RDSS used reasonable
and appropriate efforts to communicate with Miller and to
strengthen the parent-child relationships; and (5) RDSS proved by
clear and convincing evidence that RDSS used reasonable and
appropriate efforts to assist Miller to remedy substantially the
conditions which led to or required continuation of the children's
foster care placement. We conclude the appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
See Rule 5A:27.
BACKGROUND
Antonio Miller, Jr. was born on August 15, 1990, and Andre
Miller was born on September 19, 1992. RDSS received numerous
complaints from Miller's neighbors that the boys were often
hungry, dirty, and unsupervised. Custody of the children was
granted to RDSS on November 14, 1994, and the boys were residing
in Miller's home when they were removed. At that time, Miller was
ordered to take parenting classes, enter substance abuse
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treatment, obtain adequate housing, obtain employment and take a
CPR class.
Miller attended one session of a parenting class in 1996. He
entered at least three drug treatment programs but he did not
complete any of the programs in the past five years. Over the
years, RDSS referred Miller to certain parenting classes, numerous
drug treatment programs, and counseling opportunities. RDSS
offered visitation with the children, transportation
reimbursement, and mediation services. Over recent years, RDSS
had made twenty-six appointments with Miller, and he only kept
one.
Miller also failed to obtain adequate housing, and, for the
past two to three years, he has lived with his girlfriend and her
two teen-aged daughters in a two-bedroom apartment. Miller had no
visitation with the boys in 1994. In 1995 and 1996 he visited the
children three times each year. He had two visits with the boys
from July 1997 through April 13, 1999. Miller visited the boys
twice from May 1999 through December 14, 1999.
The children have been with the foster parent since November
30, 1994, and the foster parent is a prospective adoptive parent.
The social care worker testified the boys are doing "very well" in
the foster home, and although Andre has "special needs," the needs
are "being addressed." Andre has attention deficit disorder, has
been diagnosed as emotionally disturbed, and attends special
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education classes. The boys have a close bond with their foster
mother, consider her as their mother, and they call her "Mom."
Miller testified he is planning to buy a house, but he could
not identify the location of the house or the name of a realtor
with whom he was working to purchase the house. Miller has also
been employed as a mover for about fifteen years. He stated his
job often requires him to travel out of town, making regular
visitation with the children difficult. Miller disputed that he
had missed twenty-six appointments with RDSS. He also disputed
the number of times the social workers stated he has visited the
boys in recent years. He testified he has visited the children
about fifty times over the past five years. He also stated he
sees his other three children often, although none of them live
with him.
Miller testified that he had left messages at RDSS, and no
one has returned his calls. Miller stated he attended an
inpatient drug-counseling program for four months. He then
completed another forty-five day program, but did not complete the
after-care program. He stated he no longer uses illegal drugs and
has not used drugs for two years. Miller admitted he had never
contacted the children's guardian ad litem when he experienced
difficulty in arranging visitation with the boys.
ANALYSIS
"When addressing matters concerning a child, including the
termination of a parent's residual parental rights, the paramount
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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." The
trial court's judgment, "when based on
evidence heard ore tenus, will not be
disturbed on appeal unless plainly wrong or
without evidence to support it."
Id. (citations omitted).
The trial court found that RDSS presented clear and
convincing evidence meeting the statutory requirements set out in
Code § 16.1-283(C)(1) and (2). "Code § 16.1-283 embodies 'the
statutory scheme for the . . . termination of residual parental
rights in this Commonwealth' [which] . . . '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).
Code § 16.1-283(C)(1) provides, in pertinent part, that the
residual parental rights of a parent of a child placed in foster
care may be terminated if the court finds by clear and convincing
evidence that it is in the best interests of the child and that
[t]he parent . . . [has], without good
cause, failed to maintain continuing contact
with and to provide or substantially plan
for the future of the child for a period of
six months after the child's placement in
foster care notwithstanding the reasonable
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and appropriate efforts of social, medical,
mental health or other rehabilitative
agencies to communicate with the parent or
parents and to strengthen the parent-child
relationship. Proof that the parent . . .
[has] failed without good cause to
communicate on a continuing and planned
basis with the child for a period of six
months shall constitute prima facie evidence
of this condition.
Code § 16.1-283(C)(2) provides, in pertinent part, that the
parent's parental rights may be terminated if the court finds by
clear and convincing evidence that it is in the best interests of
the child and that
[t]he parent . . ., without good cause,
[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, notwithstanding the
reasonable and appropriate efforts of
social, medical, mental health or other
rehabilitative agencies to such end. Proof
that the parent . . ., without good cause,
[has] failed or been unable to make
substantial progress towards elimination of
the conditions which led to or required
continuation of the child's foster care
placement in accordance with their
obligations under and within the time limits
or goals set forth in a foster care plan
filed with the court or any other plan
jointly designed and agreed to by the parent
. . . and a public or private social,
medical, mental health or other
rehabilitative agency shall constitute prima
facie evidence of this condition. The court
shall take into consideration the prior
efforts of such agencies to rehabilitate the
parent or parents prior to the placement of
the child in foster care.
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Miller contends the trial court erred in finding RDSS proved
by clear and convincing evidence that Miller, without good cause,
failed to maintain contact with and to provide or substantially
plan for the future of his children for a period of six months
after their placement in foster care. He argues he has maintained
contact with the boys for the five years they have been in the
custody of RDSS. Miller also contends he has good cause for not
visiting the children more often because his job requires him to
travel. He asserts he has remedied substantially the conditions
which led to the foster care placement.
We find substantial evidence in the record supporting the
trial court's finding that Miller has made "some contact" with the
children, but he has not made sufficient contact to comply with
the statute, and he has failed to remedy substantially the
conditions which led to their foster care placement. The trial
court did not accept Miller's testimony that he had visited the
boys fifty times over the past five years. The trial court
accepted as true the evidence presented by RDSS that Miller only
sporadically visited the boys in the past five years. The boys
were two and four years old when placed in foster care, and Miller
had not maintained a relationship with them for the past five
years.
The trial court was also concerned that Miller indicated at
the December 1999 hearing that he had not visited the boys since
June. The trial court also questioned Miller's testimony that he
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was in the process of buying a house, but he could provide no
details concerning the purchase. Evidence was also presented that
Miller failed to attend twenty-six scheduled mediation meetings
with RDSS concerning the boys.
Miller also argues RDSS failed to use reasonable and
appropriate efforts to assist him to remedy the conditions which
led to the foster care placement. RDSS instructed Miller to
attend parenting classes and substance abuse counseling. The
evidence proved he failed to complete either program. In 1994,
RDSS advised Miller to obtain adequate housing for the boys and he
has not yet moved to a larger residence. These facts support the
trial court's finding that Miller has failed to remedy
substantially the conditions which led to the foster care
placement.
Furthermore, the evidence proved RDSS had made reasonable and
appropriate efforts to communicate with Miller and strengthen his
relationship with the boys. RDSS referred Miller to numerous
parenting and substance abuse programs. RDSS offered
transportation reimbursement for visitation and mediation services
to explore long term solutions to the situation. Yet Miller
attended only one of the twenty-six scheduled mediation meetings.
Therefore, the record demonstrates that appropriate services
were offered by RDSS but Miller made little or no effort to
respond to those offers. "The law does not require the [RDSS] to
force its services upon an unwilling or disinterested parent."
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Barkey v. Commonwealth, 2 Va. App. 662, 670, 347 S.E.2d 188, 192
(1986). Thus, the evidence established that, despite the passage
of time, Miller had not yet resolved the problems that initially
led to the children's foster care placement.
Miller argues the evidence failed to support a finding that
terminating his parental rights is in the best interests of the
children. The children have been in the same foster home since
November 1994, and the foster parent is the prospective adoptive
parent. The boys consider their foster mother as their own
mother, and the evidence indicated they had a good relationship
with her. The foster mother is also addressing the special needs
of Andre. The foster mother testified that when Miller has had
visitation with the boys, he has on occasion returned the boys
late, dirty and sometimes without clothing she had packed for
them.
The children have been in foster care for five years, over
half of their lives, while Miller has been unable or unwilling to
cooperate with the agencies seeking to assist him. He has not
demonstrated that he is willing or able to remedy within twelve
months the conditions that led to the boys being placed in foster
care or shown good cause for his failure or inability to do so.
"It is clearly not in the best interests of a child to spend a
lengthy period of time waiting to find out when, or even if, a
parent will be capable of resuming his responsibilities." Kaywood
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v. Halifax County Dep't of Soc. Servs., 10 Va. App. 535, 540, 394
S.E.2d 492, 495 (1990).
The record supports the trial court's finding that RDSS
presented clear and convincing evidence satisfying the statutory
requirements of Code § 16.1-283 and establishing that termination
of Miller's parental rights was in the children's best interests.
Accordingly, we summarily affirm the decision.
Affirmed.
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