COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bray and Bumgardner
Argued at Chesapeake, Virginia
CATHERINE A. DIMAURO
MEMORANDUM OPINION * BY
v. Record No. 1533-99-1 JUDGE RUDOLPH BUMGARDNER, III
APRIL 11, 2000
VIRGINIA BEACH DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Alan E. Rosenblatt, Judge
Peter J. Jankell for appellant.
Nianza E. Wallace II, Assistant City Attorney
(Leslie L. Lilley, City Attorney, on brief),
for appellee.
In February 1999, the juvenile and domestic relations
district court terminated Catherine A. DiMauro's residual
parental rights to two of her children, eight-year-old Ronald
and twelve-year-old Amelia. After a trial de novo, the circuit
court terminated the mother's residual parental rights on
August 3, 1999. The mother argues the trial court erred because
(1) she had remedied the conditions that led to the children's
foster care placement, and (2) she had made substantial progress
toward, or satisfied all the conditions in, the foster care
plan. For the following reasons, we affirm.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
DSS began providing services to the DiMauro family in April
1997 based upon allegations that the husband was abusing the
parties' fifteen-year-old son, Roberto. On June 16, 1997, the
juvenile and domestic relations district court granted DSS an
emergency removal order for Ronald and Amelia after the mother
spent the night on the street with Ronald. The mother lacked
the necessary resources to provide the children with shelter,
food or protection.
On September 15, 1997, DSS filed a foster care plan with
the goal of returning the children to the parents. This plan
required the mother to cooperate with DSS, attend individual and
family therapy to address family violence issues, undergo a
psychological evaluation, complete treatment and medications as
prescribed, participate in weekly supervised visitation, obtain
a verifiable means of financial support, and provide the
children a safe home free of violence.
On November 4, 1997, Dr. Ellen Kveton evaluated the
mother's parenting capacity and ability to protect her children.
She recommended individual therapy, a psychiatric consultation
to determine whether medication was required for depression,
parenting classes, and a psychological evaluation. Joanne
Glass, a licensed clinical social worker, evaluated the mother's
level of denial of her nineteen year history of domestic
violence and its impact on the children. By letter dated
December 2, 1997, Glass recommended the mother participate in
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long term individual therapy, a battered women's support group,
family therapy with the children, parenting classes, and
treatment with anti-depressant medication. The mother was
obligated to comply with these recommendations as part of DSS's
foster care plan.
Starting in September 1997, the mother repeatedly violated
visitation rules by trying to find the location of the
children's school and its telephone number from Amelia. The
mother also violated visitation by urging Amelia to tell the
court that she wanted to live with her mother and to deny any
child abuse she had experienced. In December 1997, DSS ceased
supervising the visits and arranged for visitation to coincide
with the mother's family counseling with the children.
In therapy with Dr. Jane Hollingsworth, Amelia revealed
that her two older brothers sexually abused her. 1 The mother
denied such abuse occurred and then denied calling her daughter
a liar. In March 1998, Dr. Hollingsworth recommended that the
children have no contact with the mother until she took the
necessary steps to ensure their emotional and physical safety.
Dr. Hollingsworth terminated the mother's visitation in April
1998.
1
On August 25, 1998, Joseph DiMauro was convicted of four
counts of forcible sodomy, three counts of aggravated sexual
battery, and one count of object sexual penetration all
involving Amelia and sentenced to 65 years with all but twenty
suspended.
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In addition to the mother's noncompliance with required
visitation, she violated other terms of DSS's foster care plan.
The mother did not attend a support group for battered women,
follow through with recommended individual counseling and
prescribed medication, secure a reliable source of income, and
obtain safe housing for the children. As a result, DSS filed a
new foster care plan with the goal of terminating the mother's
residual parental rights on June 8, 1998. The plan noted that
the mother "has shown no motivation to resolve her financial
hardships other than asking for assistance."
In September 1998, the mother moved to the state of
Washington. She participated in a support group for battered
women and attended a group for parents of sexually abused
children. She lives in transitional housing and receives
financial assistance. In November 1998, the mother completed a
parenting class, and in May 1999 she became a certified
caregiver to the elderly. She participated in five individual
counseling sessions and divorced her abusive husband on April 7,
1999. The mother obtained part-time employment at McDonald's
and in June 1999 applied for government housing, but is eligible
only if she regains custody of her children.
At the July 23, 1999 hearing, the trial court noted that
the mother allowed the children "to live in an extremely
dangerous environment," failed to provide them with a safe home,
continually sided with the perpetrators who abused them, and
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repeatedly ignored DSS's recommendations. By order entered
August 3, 1999, the court found by clear and convincing evidence
that termination of the mother's parental rights was in the
children's best interest under Code § 16.1-283(C)(2) and that
"the children have waited long enough to have a future."
The mother argues that since September 1998 she has
substantially remedied the conditions that led to the children's
foster care placement and has made substantial progress toward
the conditions in DSS's September 1997 plan.
Residual parental rights may be terminated if it is in the
children'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 children'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.,
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).
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The mother took no affirmative steps until one year after
the children's placement in foster care when DSS filed its
petition for termination. The evidence showed that despite
DSS's assistance, the mother failed to participate in individual
counseling, refused to follow through with recommendations made
by professionals working with her, and failed to secure stable
employment or safe housing for herself let alone her children.
Additionally, the mother's actions resulted in the termination
of her visitation with the children. Credible evidence supports
the trial court's finding that the mother failed to remedy
within one year of the children's placement in foster care the
conditions that led to that placement.
The mother has not established that she made substantial
progress in remedying the conditions since moving to Washington
in September 1998. While her actions are commendable, they came
too late. Dr. Kveton testified that the mother required a
minimum of one year of individual therapy to address the
"psychological factors, emotional concerns, and personality
factors" that prevented her from being able to protect her
children from abuse. Joanne Glass and Dr. Hollingsworth both
estimated that the mother needed a minimum of two years of
individual therapy. Dr. Hollingsworth also indicated that the
children needed at least a year of family therapy with the
mother before reunification. Moreover, the mother worked for
McDonald's for only three months and had no stable home unless
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the children were returned to her. "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 v. Halifax County
Dep't of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495
(1990).
We conclude there is clear and convincing evidence to
support the trial court's finding that the mother was unable or
unwilling to remedy the conditions that led to the children's
foster care placement within one year from their placement
pursuant to Code § 16.1-283(C)(2). Nor has she shown good cause
for her failure or inability to do so.
Accordingly, we affirm the trial court's decision.
Affirmed.
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