COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
KATHLEEN PADILLA
MEMORANDUM OPINION *
v. Record No. 1388-98-1 PER CURIAM
JANUARY 26, 1999
NORFOLK DIVISION OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge
(Allan D. Zaleski; Weisberg & Zaleski, on
brief), for appellant.
(Bernard A. Pishko, City Attorney; Martha G.
Rollins, Deputy City Attorney, on brief), for
appellee.
Kathleen Padilla appeals the decision of the circuit court
terminating her parental rights to her son. Padilla contends
that the trial court erred by (1) finding that the Norfolk
Division of Social Services (DSS) presented sufficient evidence
to support the termination of her parental rights; (2) admitting
into evidence a psychological evaluation report of Padilla; and
(3) allowing the court appointed special advocate (CASA) to
testify as to her recommendation. Upon reviewing the record and
briefs of the parties, we conclude that this appeal is without
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
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
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).
"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).
The trial court terminated Padilla's parental rights under
the provisions of Code § 16.1-283(C)(1). That provision states,
in pertinent part:
The residual parental rights of a parent
. . . of a child placed in foster care as a
result of court commitment . . . may be
terminated if the court finds, based upon
clear and convincing evidence, that it is in
the best interests of the child and that:
(1) The parent . . . [has], without
good cause, failed to maintain contact with
and to provide or substantially plan for the
future of the child for a period of twelve
months after the child's placement in foster
care notwithstanding the reasonable and
appropriate efforts of social, medical,
mental health or other rehabilitative
agencies to communicate with the parent . . .
and to strengthen the parent-child
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relationship . . . .
Code § 16.1-283(C)(1). Proof that a parent "failed, without good
cause, to communicate on a continuing or planned basis with the
child for a period of twelve months" is prima facie evidence of
the conditions set out in subdivision (C)(1). Code
§ 16.1-283(C)(3)(a).
Sufficiency of the Evidence
Padilla contends that DSS failed to present evidence
sufficient under Code § 16.1-283 to support its motion to
terminate her parental rights to her son, Paul. We disagree. In
February 1993, Padilla's youngest child died as a result of
septic shock caused by severe neglect. DSS obtained an order
removing Padilla's six children from her custody. The children
were placed in foster care because the home was unsafe and
unclean. At the time he was placed in foster care, Paul was
seven months old and was severely developmentally delayed.
DSS provided numerous services to Padilla with the goal of
returning Paul to her custody. DSS provided home-based services,
which included twenty-four-hour crisis support, transportation
assistance, therapy, financial assistance, and parenting classes.
Padilla improved her situation, and two of her six children were
returned to her custody in 1994.
Despite the efforts of DSS to promote the parent-child
relationship, Padilla failed to maintain contact with Paul.
Helen Johnson, a DSS social worker, testified that she attempted
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to set up meetings between Padilla and Paul throughout 1995 and
1996, but Padilla did not respond. In July 1996, Padilla
indicated she was unavailable to visit Paul because she was
looking for a job. Padilla did not inquire concerning Paul and
sent no cards, letters, or gifts to him. In her testimony at
trial, Padilla indicated that she thought she saw Paul two times
in 1994, two or three times in 1995, and might have visited with
him once in 1996.
In 1995, DSS changed the goal of Paul's foster care plan to
adoption. This Court affirmed the changed goal in a previous
appeal. See Padilla v. Norfolk Div. of Soc. Servs., 22 Va. App.
643, 472 S.E.2d 648 (1996).
Paul has been in the same foster home over six years. He
has recovered from his early delays and is now on an appropriate
grade level in school. Paul suffers from attention deficit
disorder and displays characteristics indicative of
obsessive-compulsive disorder. Paul's foster mother testified
that she is in contact daily with Paul's school because he needs
consistent and constant supervision of his behavior. Paul has
bonded with his foster family. Paul's therapist opined that
removing Paul from his foster family would be detrimental to
Paul.
The trial court found that DSS proved by clear and
convincing evidence that Padilla failed, without good cause, to
maintain contact with Paul while he was in foster care and that
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it was in Paul's best interests to terminate Padilla's parental
rights under the provisions of Code § 16.1-283(C)(1). The trial
court's decision is fully supported by the evidence.
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Admission of Evidence
Padilla contends that the trial court erred by admitting
into evidence the report of her psychological evaluation
conducted by Dr. Raleigh Phillips. We disagree.
The juvenile and domestic relations district court required
mother's evaluation by order entered August 16, 1994. In January
1995, when Padilla appealed the juvenile court decision to the
circuit court, a copy of the psychological evaluation was
included in the transmitted records as a file exhibit. Padilla
objected to the report as inadmissible hearsay.
Code § 16.1-245.1 allowed the introduction of the report in
the juvenile court proceeding. Because the report was previously
made a part of the file in the juvenile court and the juvenile
court documents were admitted in evidence, we find no error in
the trial court admitting the report of the psychological
evaluation into evidence.
Padilla further contends that the trial court erred when it
allowed the former CASA worker to testify whether she believed
Paul should be returned to Padilla. Code § 9-173.8(2)
specifically authorizes a CASA worker to make recommendations
concerning a child's welfare in reports to the court. While
Paul's placement was intertwined with the inquiry before the
court, the ultimate issue to be decided was the separate question
whether to terminate Padilla's parental rights. The CASA
worker's opinion regarding Paul's placement did not intrude on
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the trial court's obligation to decide whether to terminate
Padilla's parental rights. Therefore, we find no error in the
trial court's admission of the CASA worker's recommendation.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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