COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
DONNA FAYE SMITH
MEMORANDUM OPINION *
v. Record No. 0830-99-3 PER CURIAM
OCTOBER 5, 1999
ROANOKE CITY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Jonathan M. Apgar, Judge
(Joseph F. Vannoy, on brief). Appellant
submitting on brief.
(William M. Hackworth, City Attorney;
Allen T. Wilson, Assistant City Attorney, on
brief). Appellee submitting on brief.
Donna Faye Smith (mother) appeals the decision of the circuit
court terminating her parental rights to two of her children,
"CWA" and "CSA." Mother contends that the trial court erred by
(1) finding that Roanoke City Department of Social Services (DSS)
presented clear and convincing evidence sufficient to support
terminating her parental rights; and (2) finding that it was in
the children's best interests for mother's parental rights to be
terminated. We conclude that this appeal is without merit.
Accordingly, we affirm the decision of the trial court.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
"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 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). "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).
Former Code § 16.1-283(C)(2) 1 , in effect at the time of this
case, provided that a parent's residual parental rights to a child
placed in foster care could be terminated if the trial court found
it was in the best interests of the child and,
[t]he parent or parents, without good cause,
ha[d] been unwilling or unable within a
reasonable period not to exceed twelve
months to remedy substantially the
conditions which led to the child's foster
1
Code § 16.1-283 was re-written in 1998.
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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, failed or was
unable to make reasonable progress toward the elimination of the
conditions which led to the child's foster care placement in
accordance with his or her obligations under and within the time
limits set forth in a foster care plan filed with the court or a
jointly designed foster care plan is prima facie evidence of the
conditions set forth in Code § 16.1-283(C)(2). See Former Code
§ 16.1-283(C)(3)(b) (recodified as Code § 16.1-283(C)(2)).
The children's father (father) contacted DSS on August 21,
1996 and claimed that he was unable to take care of CWA and CSA.
Father requested that DSS take the children. Before a DSS
representative arrived at father's residence, mother took the
children.
Sometime later, father again contacted DSS, stating that
mother had returned the children to him, but that he did not have
food or supplies for the children. Kellie Flowers, of DSS,
testified that she went to father's residence and saw that he had
no food or furnishings for the children. Mother had removed the
food, furnishings, refrigerator and stove from father's residence.
After Flowers spoke with mother, she returned the stove,
refrigerator and some canned food to father's residence.
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Mother advised Flowers that father had been abusive to her
and the children. However, mother left the children in father's
care. At a hearing held on October 31, 1996, the children were
placed in the legal custody of DSS. At the hearing, both mother
and father stated that they were financially unable to take care
of the children. Flowers testified that she urged mother to go to
a battered women's shelter so that she could keep the children
together and with her, but mother refused to go. Flowers also
advised mother that if she would work with Flowers, Flowers could
help mother keep the children. Later, father died.
On February 19, 1999, a hearing was held concerning the
termination of mother's parental rights. William Bailey, a foster
care supervisor for DSS, testified that when the children were
placed into foster care in the fall of 1996, mother received a
copy of the foster care service plan, which listed the things
mother needed to do in order to have her children returned to her
care. DSS advised mother that she needed to find and maintain
stable employment and adequate housing, visit the children, attend
counseling, and keep DSS informed of any changes in her situation.
On January 22, 1997, mother signed a contract with DSS, which
listed the tasks that mother needed to complete in order to have
the children returned to her.
Bailey stated that, initially, mother "showed signs of
complying" with the contract. She started counseling, but then
only attended two or three sessions. DSS advised her to take a
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parenting class, but she did not complete the class. Mother was
incarcerated for a probation violation for a period of time, and
she did not maintain steady employment for more than a few months
at a time. Although during the first year that the children were
in foster care, mother regularly visited the children, she failed
to comply with the other terms of the contract in order to have
the children returned to her custody. Bailey testified that as
time went on, it "became clear to" him that mother was "satisfied"
to have other people care for the two children as long as she
could visit the children. Bailey stated that DSS never considered
returning the children to mother. Bailey also indicated that DSS
sometimes had trouble reaching mother by telephone because she had
no permanent residence after early 1997.
Bailey testified that both children had "well documented
special needs" when they entered foster care. CWA was attending
class for emotionally disturbed children. CSA had "delayed
development," was in speech therapy, and "was basically
non-verbal" when he entered foster care. Bailey stated that
mother was aware of the children's special needs. Bailey
testified that the "children are doing remarkably better than they
were two years ago."
Mother was on probation and parole for a prior criminal
conviction. Brent Keith, mother's probation and parole officer,
testified that mother is required by the terms of her probation
and parole to attend counseling for depression, family and
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relationship issues. Keith stated that mother had previously
missed several of her counseling sessions, although in the months
immediately preceding the hearing, she had been attending her
sessions. Keith also testified that mother is required to live
with her aunt and grandmother until Keith believes it would be
appropriate to live on her own. Keith stated that because mother
has not obtained and maintained employment, paid her court costs
or court-ordered restitution, and has missed some of her
counseling sessions, he did not believe that mother would qualify
to live on her own.
On October 3, 1997, mother signed another contract with DSS,
again acknowledging the tasks she needed to complete in order to
have the children returned to her care. Mary Beth Newton
testified that during the fall of 1997, she was in charge of the
children's case. Newton said her biggest concern was mother's
lack of steady employment. Newton also stated that she had
difficulty maintaining contact with mother because mother did not
have a permanent residence. In April, 1998, mother wrote a
good-bye letter to the children, but Newton said that DSS would
not allow the children to read the letter. Newton also stated
that mother attended counseling sessions "on and off" and attended
many of the scheduled visits with the children. Newton testified
that the children tended to exhibit behavior problems after
visiting with mother or when mother would cancel the visits at the
last minute. Furthermore, mother did not maintain stable
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employment, and she did not obtain stable, independent, and
appropriate housing for the children while Newton handled the
children's case.
Eric Robinson was the foster care worker for the children
from July, 1998 until the February 17, 1999 hearing date.
Robinson stated that mother had missed a few visits with her
children and had been late to some of the visits. Robinson also
stated that DSS would not return the children to mother's care at
that time.
Mother testified that she planned to continue counseling and
she intended to find a job. She stated that since September,
1996, the longest time period in which she continuously held the
same job was six weeks. The longest time period in which she had
lived in one residence since September, 1996 was nine months.
Mother still lived with her grandmother, but she stated that she
had been renting a house that she did not live in, despite the
fact that she was unemployed. She also admitted that she had not
paid her court costs or restitution from her prior conviction.
Thus, the evidence proved that during the time period from
the date the children were placed in foster care on October 31,
1996 until February, 1999, mother did not request unsupervised
visits with her children, did not file for custody of the
children, failed to maintain steady employment, and failed to
obtain appropriate housing for the children. In short, during
this time period, mother failed to progress toward having her
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children returned to her care. Furthermore, the evidence proved
that the children had special needs and were making improvements
while in foster care. In addition, evidence was presented that
the children tended to have behavior problems after visiting with
their mother.
Therefore, although the record suggests that mother expressed
good intentions over the years about having her children returned
to her care, DSS presented clear and convincing evidence,
including mother's own testimony about the instability of her
lifestyle, that mother has been unable or unwilling within a
reasonable period of time to substantially remedy the conditions
which led to the foster care placement, despite the efforts of
rehabilitative agencies. In addition, DSS presented clear and
convincing evidence that it was in the best interests of the
children to terminate the parental rights of mother. Accordingly,
we cannot say that the findings of the trial court were plainly
wrong or without evidence to support them.
For these reasons, we affirm the decision of the trial court.
Affirmed.
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Benton, J., dissenting.
"The termination of parental rights is a grave, drastic and
irreversible action." Lowe v. Department of Public Welfare, 231
Va. 277, 280, 343 S.E.2d 70, 72 (1986). An order terminating
parental rights permanently severs the relationship between a
child and her natural parent and "render[s] the parent a legal
stranger to the child." Shank v. Department of Social Services,
217 Va. 506, 509, 230 S.E.2d 454, 457 (1976). Recognizing the
harshness of a termination order, the Supreme Court has observed
the following:
Our prior decisions clearly indicate a
respect for the natural bond between
children and their natural parents. The
preservation of the family, and in
particular the parent-child relationship, is
an important goal for not only the parents
but also government itself. While it may be
occasionally necessary to sever the legal
relationship between parent and child, those
circumstances are rare. Statutes
terminating the legal relationship between
parent and child should be interpreted
consistently with the governmental objective
of preserving, when possible, the
parent-child relationship.
Weaver v. Roanoke Dept. of Human Res., 220 Va. 921, 926, 265
S.E.2d 692, 695 (1980).
As the majority notes, the record suggests that Donna Faye
Smith had good intentions about having her children returned to
her custody. No evidence proved that she ever neglected her
children or had anything other than their best interests in
mind. Although Smith sometimes made poor decisions, many of
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those decisions were determined by her financial and emotional
difficulties rather than ill will toward the children. Further,
evidence in the record established that she was trying to
protect herself and the children from abuse by their father.
Apparently, Smith had been involved with the children's father
since she was a pre-teen. He physically and emotionally abused
her over many years. Smith suffered trauma from the abuse the
children's father inflicted and from his death. Smith also
indicated she was a victim of childhood sexual abuse and was
trying to address the problems associated with that abuse
through counseling at Blue Ridge Community Services.
On June 11, 1998, thirteen months after the children's
father's death, the Roanoke City Department of Social Services
filed its petition to terminate Smith's rights. The Department
informed Smith that to secure the return of her children she
needed to find stable employment, a suitable place to live,
attend counseling, and visit the children. Although Smith did
not satisfy those requirements without complication, she
substantially complied with the Department's instructions. The
record indicates that she showed signs of complying with the
Department's requirements until the spring of 1997, when the
children's father died and she was incarcerated for larceny.
By the following spring, however, Smith seemed to again be
acting in good faith to comply with the Department's
recommendations. She maintained stable housing with her
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grandmother from April of 1998 until the court date. The record
also established that Smith, in an effort to regain custody of
her children, had rented a three bedroom house and was current
on the rent. However, she had been unable to occupy the house
because her probation officer required her to live with her
grandmother until she could pay her court costs and restitution
and maintain regular employment. Smith was attempting to
balance her probation officer's requirement that she live with
family and the Department's requirement that she secure a home
with enough bedrooms for each of the children. Smith testified
she rented a house because her grandmother's house had only one
extra bedroom and she needed to have a separate room for each of
the two children.
With the exception of a few missed appointments, Smith
visited her children regularly while they were in foster care.
Although the Department concluded that at some point Smith
seemed "satisfied" to have other people raise her two children
as long as she could visit them, Smith indicated that she very
much wanted to raise her children.
Although Smith did not attend the parenting class the
Department suggested, she did attend parenting classes while
incarcerated on a probation violation. Although the Department
was concerned that Smith did not stay in the same job for more
than six weeks at a time, Smith made an effort to stay employed
in one job or another and was never fired from any of her jobs.
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She quit voluntarily and always found other work. She has even
worked mowing lawns. Additionally, as part of her probation,
Smith is tested for drugs three times a week and has never had a
positive test.
In short, the evidence in the record does not indicate that
Smith ever abused her children. The children were placed with
social services because Smith and her deceased husband were
financially unable to care for the children. Smith continues to
suffer a financial inability to provide for the children.
Moreover, the record fails to establish that Smith failed
"without good cause" to remedy the conditions that led to the
placement.
"By its nature, Code § 16.1-283 'contemplates the use,
where possible, of alternatives less drastic than termination of
parental rights.'" Edwards v. County of Arlington, 5 Va. App.
294, 312, 361 S.E.2d 644, 654 (1987) (quoting Knox v. Lynchburg
Div. of Social Servs., 223 Va. 213, 223, 288 S.E.2d 399, 404
(1982)). I believe that the circumstances of this case suggest
that an alternative less drastic than termination of parental
rights was warranted. Thus, I would reverse the order
terminating Smith's parental rights.
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