COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
JANICE KNIGHT
MEMORANDUM OPINION *
v. Record No. 1841-99-3 PER CURIAM
NOVEMBER 23, 1999
BEDFORD COUNTY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF BEDFORD COUNTY
J. Samuel Johnston, Jr., Judge
(Carolyn H. Furrow, on brief), for appellant.
(J. G. Overstreet, County Attorney, on
brief), for appellee.
(R. Louis Harrison, Jr.; Steven R. Grant, on
brief), Guardians ad litem for the minor
children.
Janice Knight (Knight) appeals the decision of the circuit
court terminating her parental rights to her three children,
Glenna Renee Knight, Lizzie Leann Calloway, and Jerome Peaches
Calloway, Jr., all under the age of six. On appeal, Knight
contends that (1) the evidence was insufficient to meet the
statutory requirements set out in Code § 16.1-283(C)(2); and (2)
her rights to due process were violated when the trial court
proceeded with the termination hearing despite her absence. Upon
reviewing the record and briefs of the parties, we conclude that
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
this appeal is without merit. Accordingly, we summarily affirm
the decision of the trial court. See Rule 5A:27.
On appeal, under familiar principles, we view the evidence
and all reasonable inferences in the light most favorable to the
Bedford County Department of Social Services (DSS), the party
prevailing below. See Martin v. Pittsylvania County Dep't of
Social Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986).
"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."
Id. "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 v. Fairfax County
Dep't of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463
(1991) (citations 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. 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."
Id.
Code § 16.1-283(C)(2)
The trial court found that the DSS presented clear and
convincing evidence sufficient to meet the requirements of Code
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§ 16.1-283(C)(2) and that termination of Knight's parental rights
was in the best interests of her children. "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).
Under Code § 16.1-283(C)(2), the parental rights of a parent
whose child is 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:
The parent . . ., without good cause, [has]
been unwilling or unable within a reasonable
period 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 [her] 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 or parents 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
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efforts of such agencies to rehabilitate the
parent . . . prior to the placement of the
child in foster care. 1
DSS became involved with Knight in the summer of 1997. At
that time, Knight and the three children were living in a home
without running water or electricity. The home also had lead in
the soil, exposing the children to lead poisoning. At that
time, Knight needed assistance with transportation, finances,
and supervision of the children. By November 1997, Jerome P.
Calloway (Calloway), the biological father of Lizzie and Jerome,
Jr., was living in the home, having been released from prison.
Knight reported abuse at the hands of Calloway and signed an
entrustment agreement placing her children in foster care.
Knight reported to DSS an incident in which Calloway held a
shotgun to her head and choked her in front of the children.
In December 1997, Knight entered a program at Miriam's
House. Program personnel reported that Knight did not make
1
The trial court found clear and convincing evidence
satisfied the requirement of Code § 16.1-283(C)(2) and
(C)(3)(b). Code § 16.1-283 was substantially revised effective
July 1, 1998, prior to the date the petitions for termination
were filed in the juvenile and domestic relations district
court. Under the revised statute, the provision formerly set
out in subsection (C)(3)(b) is incorporated in subsection
(C)(2). The revised provision is virtually unchanged from the
previous provision, except that parents must make "substantial
progress towards elimination of the conditions which led to or
required continuation of the child's foster care placement"
rather than only "reasonable progress." None of the parties
suggested on appeal that the trial court's reference to Code
§ 16.1-283(C)(3)(b) under the older version of the statute
affected the outcome of this case.
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substantial progress, noting she failed to abide by the
program's rules and repeatedly failed to adequately supervise
her children. The two older children showed signs of abuse,
including night terrors and exaggerated startle responses. The
eldest child was not speaking, although she was over three years
old. Program personnel reported that Knight's "interactions
with Miriam's House staff have been characterized by
dishonesty," noting particularly that Knight failed to disclose
her 1990 conviction for aggravated sexual battery of a
fourteen-year-old babysitter, which would have barred her
admission into the program without further investigation.
Knight left the program in January 1998, despite the fact that
the children were then placed in foster care and were no longer
with her.
Calloway underwent an assessment under ARISE, which
indicated he needed an intensive treatment program. He refused
to acknowledge any problem with drinking or drugs, although he
tested positive for cocaine. He also indicated that he did not
care if he did not see the children until they were eighteen.
DSS told Knight that, in light of Calloway's failure to
acknowledge any problem with alcohol, her relationship with
Calloway impeded her ability to regain custody of the children.
Nonetheless, she elected to stay with Calloway. They moved into
a new residence in June 1998, which did not have running water
until October 1998.
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Through DSS, Knight received intensive home-based
counseling and mentoring services designed to assist her as a
single parent, but demonstrated no ability to continue on her
own when those services were cut back. Knight was encouraged to
attend AL-ANON, and to stay in contact with the Child Abuse
Prevention Center on a regular basis. Knight did not do so.
She worked several jobs, but failed to hold one job for more
than a few months. She failed to implement recommended changes
in her behavior or to contact available services. Through her
decision to remain with Calloway, and the physically inadequate
and unhealthy home in which they lived, the children did not
have overnight visits so that she could implement parenting
skills she was shown.
At trial, Knight admitted that DSS told her that Calloway
was a danger to her children. She testified that she planned to
remain with Calloway. She testified that, if she had custody of
the children, Calloway would leave the premises. However,
Calloway testified that he would remain in the home for the next
year because he was being released on house arrest.
The trial court found that Knight, without good cause, was
unwilling or unable to remedy substantially the conditions which
led to the children's foster care placement, for a period
exceeding twelve months. The evidence indicated that Knight
received extensive services. Significantly, however, she
refused to remove herself from the abusive relationship with
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Calloway. He refused any counseling. Thus, the underlying
cause of the children's placement in foster care – the abusive
home environment – remained unchanged. Knight remained
emotionally entangled in the relationship despite its effect on
her ability to have the children returned to her. In light of
her past history of returning to Calloway, regardless of the
consequences, the trial court was entitled to place little
weight on her testimony that he would leave the home if she
regained custody. Moreover, Calloway denied that he would leave
the home.
The children were entitled to stability in their lives and
to an environment free from violence. "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 Co.
Dep't of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495
(1990). Because the record supports the finding of the trial
court that DSS presented clear and convincing evidence meeting
the statutory requirements of Code § 16.1-283(C)(2), we affirm
the trial court's decision to terminate Knight's parental
rights.
Due Process
At the commencement of the termination proceeding at
2:00 p.m. on June 11, 1999, Knight's counsel notified the court
that Knight was not present, allegedly because "her ride would
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not pick her up until three o'clock." Knight's counsel
acknowledged that Knight knew about the hearing, both by letter
dated April 6 and from their meeting on May 17. Knight's
counsel sought a delay, which the trial court denied. Knight
appeared prior to the close of the evidence and was able to
testify in her own behalf.
We find no merit in Knight's due process claim.
"Procedural due process guarantees a litigant the right to
reasonable notice and a meaningful opportunity to be heard."
Etheridge v. Medical Center Hospitals, 237 Va. 87, 97, 376
S.E.2d 525, 530 (1989). Knight had both notice of the hearing
and an opportunity to be heard. Whether she diligently
exercised that opportunity was strictly a matter under her own
control. Knight's failure to appear, even if inadvertent,
cannot be attributed to the fault of anyone other than herself.
Knight's interests were represented, as her counsel was present
throughout the hearing. We cannot say that Knight was denied
any due process by the trial court's refusal to delay the start
of the termination hearing.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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