COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Bumgardner
PAULA RIPLEY
MEMORANDUM OPINION *
v. Record No. 2879-99-2 PER CURIAM
APRIL 25, 2000
CHARLOTTESVILLE DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Edward L. Hogshire, Judge
(Michael T. Hemenway, on brief), for
appellant.
(Lisa R. Kelley, Deputy City Attorney, on
brief), for appellee.
Paula Ripley appeals the decision of the circuit court
terminating her parental rights to her children, Charles and
Marion. Ripley contends that the trial court erred by (1) finding
that the Charlottesville Department of Social Services (DSS)
presented clear and convincing evidence satisfying the
requirements of Code § 16.1-283; (2) failing to require evidence
that DSS explored less drastic alternatives and finding that
Ripley failed to cooperate with services provided; and (3) denying
Ripley's motion for a continuance. Upon reviewing the record and
briefs of the parties, we conclude that this appeal is without
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
merit. Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
"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 Development, 13 Va. App.
123, 128, 409 S.E.2d 460, 463 (1991). "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). "'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.'" Logan, 13 Va. App. at 128, 409 S.E.2d at 463
(citation omitted). The trial judge's findings, "'when based on
evidence heard ore tenus, will not be disturbed on appeal unless
plainly wrong or without evidence to support it.'" Id. (citation
omitted).
Code § 16.1-283(B)
The court found that DSS presented clear and convincing
evidence sufficient under Code § 16.1-283(B). That section
provides that the residual rights of a parent of a child found
to be neglected or abused may be terminated if the court finds,
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by clear and convincing evidence, that it is in the best
interests of the child and that
1. The neglect or abuse suffered by such
child presented a serious and substantial
threat to his life, health or development;
and
2. It is not reasonably likely that the
conditions which resulted in such neglect or
abuse can be substantially corrected or
eliminated so as to allow the child's safe
return to his parent or parents within a
reasonable period of time. In making this
determination, the court shall take into
consideration the efforts made to
rehabilitate the parent or parents by any
public or private social, medical, mental
health or other rehabilitative agencies
prior to the child's initial placement in
foster care.
Prima facie evidence of the conditions set out in subsection
(B)(2) include proof that
a. The parent . . . [is] suffering from a
mental or emotional illness or mental
deficiency of such severity that there is no
reasonable expectation that such parent will
be able to undertake responsibility for the
care needed by the child in accordance with
his age and stage of development; [or]
* * * * * * *
c. The parent . . . without good cause,
[has] not responded to or followed through
with appropriate, available and reasonable
rehabilitative efforts on the part of
social, medical, mental health or other
rehabilitative agencies designed to reduce,
eliminate or prevent the neglect or abuse of
the child.
Code § 16.1-283(B)(2).
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The trial court found that DSS proved by clear and convincing
evidence that it was in the children's best interests to terminate
Ripley's parental rights. The children were adjudicated as
neglected in 1995 and placed in foster care. At that time,
Charles was six years old and displayed serious behavioral and
emotional problems, including fire setting, aggression, emotional
avoidance, and inappropriate sexual behavior. At the time of the
termination hearing, Charles continued to have serious emotional
issues. He suffered from depression and had expressed thoughts of
suicide. Marion was five when she was taken into foster care.
She was developmentally delayed and suffered from severe attention
deficit hyperactivity disorder. Her behavior was so dangerous and
destructive that she required constant supervision. At the time
of the hearing, Marion's chronological age was nine but she had
limited communication skills and continued behavioral problems.
The trial court found that between 1989 and 1995 DSS and at
least eighteen agencies provided rehabilitative services to the
family in an effort to remedy the children's neglect and to assist
Ripley in developing good parenting skills. Nonetheless, the
evidence demonstrated that despite the numerous services provided,
Ripley was unable or unwilling to provide the extensive care and
supervision required by the children. She was unable to maintain
Marion's schedule of medication or successfully control her
behavior. She inappropriately allowed Charles to assume a
caretaking role towards her. Her sporadic visitation with him
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left him emotionally upset. Evidence indicated that Ripley
functioned at a limited intellectual level and failed to
comprehend the depth of the children's needs. Doctor Thomas
Collins, a licensed clinical psychologist, testified that for the
children to be returned to Ripley's care safely would require
a lot more than just . . . a couple times a
week counseling. I think you're talking
about really intensive work with someone in
the home a considerable period of time to
help with . . . handling problems as they
developed.
Ripley separated from her husband in 1997 after he was charged
with a felony sexual assault against a child for whom she was
caring. At the time of the hearing, Ripley was divorced.
Despite the extensive services provided to the family for
over nine years, the evidence presented at the hearing proved that
Ripley's limitations as well as the children's extraordinarily
high needs established that there was no reasonable expectation
that Ripley could provide the care needed by these children.
Therefore, because evidence supports the trial court's finding
that DSS met the statutory requirements of Code § 16.1-283 by
clear and convincing evidence, we find no error.
Less Drastic Alternative
Ripley also contends on appeal that the trial court erred in
failing to consider a less drastic alternative than termination of
her parental rights. Ripley failed to note with any specificity
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what less drastic alternative was available but left untried by
DSS.
Despite the years of training, counseling and other services
provided in an effort to strengthen and reunite the family, the
uncontroverted evidence proved that Ripley could not parent these
children without daily intensive assistance. Evidence in the
record demonstrated that the continual upheaval in the lives of
the children was particularly difficult for the children and
clearly not in their best interests. "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 . . . responsibilities." Kaywood v. Halifax County
Dep't of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495
(1990). Therefore, we find this contention to be without merit.
Denial of Continuance
On the scheduled hearing date of September 13, 1999, Ripley's
appointed counsel sought a continuance on the ground that,
although he had reviewed the file, he had only met with Ripley
that morning, despite having sent two letters to her last known
address notifying her of his appointment. Counsel proffered that
Ripley did not receive these letters. Ripley did not testify.
Evidence presented during the hearing indicated that Ripley
contacted DSS during this period when she was interested in
visitation, but that DSS had no means to initiate contact with
her. Following entry of the juvenile and domestic relations
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district court termination order on February 5, 1999, the circuit
court hearing was continued from April 1999 due to the previously
appointed counsel's conflict of interest. No evidence indicated
that Ripley was unaware of the significance of the hearing or was
unable to meet with her attorney in the months after his
appointment. Based on the totality of the circumstances, we find
no abuse of discretion in the trial court's refusal to grant
another continuance in this matter.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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