COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Bumgardner
Argued at Richmond, Virginia
SHEBA BENILLE HOWARD
MEMORANDUM OPINION * BY
v. Record No. 1275-99-2 JUDGE RUDOLPH BUMGARDNER, III
MAY 16, 2000
CHARLOTTESVILLE DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Edward L. Hogshire, Judge
Llezelle Agustin Dugger (Carmel, Nelson &
Dugger, PLC, on brief), for appellant.
Lisa R. Kelley, Deputy City Attorney (Office
of the Charlottesville City Attorney, on
brief), for appellee.
On May 4, 1999 the trial court terminated Sheba Benille
Howard's residual parental rights in her two-year-old daughter,
Rhalausia Nashe Howard, pursuant to Code § 16.1-283(C). The
mother argues the trial court erred in finding the evidence
sufficient to terminate her rights. For the following reason,
we affirm.
The child was born September 25, 1996, when the mother was
nineteen years old. In August 1997, the mother left the child
with her friend Brenda Shifflett. At the time, the mother was
unemployed and receiving financial assistance (ADC). The mother
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
told Shifflett she was going to Richmond for a hearing on
shoplifting charges against her. The mother went into hiding.
She gave up her apartment without notifying her landlord and
moved her belongings to her father's house. The mother did not
turn herself in and was a fugitive from the law. The mother
never suggested a plan for retrieving the child. Shifflett
notified DSS of the mother's failure to maintain contact with
the child and her failure to leave sufficient diapers, formula,
or money for her care.
During August 1997, the mother's father also took care of
the child, but was either unable or unwilling to continue doing
so. On August 26, 1997, he brought the mother to DSS and she
signed an entrustment agreement giving DSS custody of the child.
The juvenile and domestic relations district court approved the
agreement. The child was treated at the emergency room for a
virus and malnutrition. At eleven months old she had only been
given formula, which was not age appropriate.
Under the entrustment agreement, the mother agreed to
resolve her legal status as a fugitive. On September 26, 1997,
DSS filed a foster care plan with the goal of returning the
child to the mother. Under this plan, the mother was to show an
ability to provide the child with appropriate and stable care,
accept responsibility for her prior legal acts, take parenting
and nutrition classes, maintain contact with the child once a
week, obtain a substance abuse assessment and follow through
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with recommended treatment, provide monthly child support, and
maintain close contact with DSS. Between August 1997 and
January 1998, DSS made reasonable efforts to contact the mother.
The mother did not resolve her fugitive status and did not
contact her child or DSS until January 1998. At that time, she
informed DSS she was arrested in October 1997 for arson and had
been incarcerated since then. The mother was convicted of
setting fire to her mother's porch while her mother was inside
the house. DSS met with the mother, gave her a copy of the 1997
foster care service plan, and outlined her obligations under
that plan. When DSS advised the mother of the substance abuse
assessment, the mother denied she needed this service.
A foster care review plan was filed April 8, 1998. This
plan also had the goal of returning the child to the mother.
Since January, the mother had sent two letters to the child.
The mother advised DSS that she was incarcerated for
Charlottesville offenses but noted that she had pending charges
in Albemarle and Chesterfield counties. DSS did not know what
the pending charges were or how long the mother might be
incarcerated. Under the review plan, the mother was to write to
the child every two weeks, maintain monthly contact with DSS to
advise her legal status and length of her incarceration, and to
document her attempts to obtain the services required by the
1997 foster care plan.
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In May 1998, the mother was convicted of felony possession
of cocaine on November 17, 1997, while she was incarcerated.
The court sentenced her to ten years with all but six months
suspended. She was to be on good behavior for ten years and
would be on supervised probation for a year upon her release.
DSS filed a third plan in August 1998 with the goal of
adoption. The mother failed to obtain substance abuse services,
or participate in parenting or nutrition classes during her
almost two-year incarceration. Since January, the mother had
written only four letters to the child. While she did maintain
fairly regular contact with DSS, the mother was unable to offer
a definite release date. The juvenile and domestic relations
district court terminated the mother's residual parental rights
in the child on January 25, 1999. The mother appealed.
The trial court held a de novo trial on April 19, 1999.
The mother testified that since January 1999, she had taken one
anger management class. Nonetheless, she was involved in an
altercation with another inmate in March 1999 and at the time of
the hearing was still in solitary confinement. Despite her
convictions, the mother claimed that she was guilty of neither
the arson nor the possession offenses. While incarcerated, the
mother had parenting and life skills management classes, and
narcotics anonymous, alcoholics anonymous, and substance abuse
and counseling services available to her. While the mother
testified she put herself on the wait list for several classes
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in March 1999, she had not obtained the services DSS required
under the 1997 plan. The mother anticipated a release date of
April 1999 and testified she was willing to follow up on
required services after that time.
On May 5, 1999, the trial court found that termination of
the mother's residual parental rights was in the child's best
interest under Code § 16.1-283(C). The trial court concluded
that the mother failed to provide or substantially plan for the
child's future "for a period exceeding six months" after her
placement in foster care; failed to remedy substantially within
a reasonable period of time the conditions which led to the
child's placement; and failed to make substantial progress
toward eliminating the conditions which led to that placement in
accordance with her obligations under DSS's plans. The mother
argues the trial court erred in finding the evidence sufficient
to terminate her residual parental rights.
Residual parental rights may be terminated if it is in the
child's best interest and the parent has not remedied
substantially the conditions that led to their foster care
placement within one year of their placement. See Code
§ 16.1-283(C)(2). The child's best interest is the paramount
concern. "On review, '[a] trial court is presumed to have
thoroughly weighed all the evidence, considered the statutory
requirements, and made its determination based on the child's
best interests.'" Logan v. Fairfax County Dep't of Human Dev.,
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13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991) (citations
omitted). Where the trial court hears the evidence ore tenus,
its decision is entitled to great weight and will not be
disturbed on appeal unless plainly wrong or without evidence to
support it. See Lowe v. Dep't of Pub. Welfare, 231 Va. 277,
282, 343 S.E.2d 70, 73 (1986).
The evidence established that the mother was not living
with the child in August 1997 when she gave DSS custody. At
that time, she was unemployed, had never worked for more than a
few months at a time, received public assistance, abandoned her
housing, and was a fugitive from the police. From August 1997
to January 1998, the mother failed to provide for the child and
failed to maintain contact with her or with DSS. The mother's
failure to turn herself in violated the entrustment agreement.
DSS directed the mother to obtain a substance abuse
evaluation and take parenting classes. It also required her to
show that she could provide the child with an appropriate and
stable home. The mother was apprised of these obligations in
January 1998. Despite the availability of resources and
services, the mother had only completed one anger management
class by April 1999. DSS was appropriately concerned with
returning the child to the mother since she was subject to a
ten-year suspended sentence conditioned upon good behavior. The
mother did not accept responsibility for her actions while she
was incarcerated and had no plans for caring for herself, let
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alone the child, upon her release. During her incarceration,
she was convicted of possession of cocaine and placed in
solitary confinement for fighting with another inmate.
Additionally, in April 1999 the child was almost three years old
and had lived with her mother for less than a year.
We conclude that there is clear and convincing evidence to
support the trial court's finding that the mother has been
unwilling or unable to remedy the conditions that led to the
child's foster care placement. Accordingly, we affirm the trial
court's judgment.
Affirmed.
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