COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Bumgardner
VIJAY DATT
MEMORANDUM OPINION *
v. Record No. 2413-97-4 PER CURIAM
APRIL 21, 1998
ALEXANDRIA DIVISION
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald M. Haddock, Judge
(Gary H. Smith, on brief), for appellant.
(Molly A. Smith, Assistant Commonwealth's
Attorney, on brief), for appellee.
Vijay Datt (father) appeals the decision of the circuit
court terminating his residual parental rights. Father contends
that the evidence was insufficient as a matter of law to prove
that he (1) could not substantially correct or eliminate within a
reasonable time the conditions which resulted in his children's
foster care placement, see Code § 16.1-283(B)(2); and (2) was
unwilling or unable within a reasonable period of time to remedy
substantially the conditions which led to his children's foster
care placement, see Code § 16.1-283(C)(2). 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.
"In matters of a child's welfare, trial
courts are vested with broad discretion in
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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."
Logan v. Fairfax County Dep't of Human Dev., 13 Va. App. 123,
128, 409 S.E.2d 460, 463 (1991) (citations omitted).
The Alexandria Division of Social Services (DSS) was
required to present clear and convincing evidence sufficient to
satisfy the requirements of Code § 16.1-283.
Code § 16.1-283 embodies "[t]he 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. However, we
have consistently held that "[t]he child's
best interest is the paramount concern."
Lecky v. Reed, 20 Va. App. 306, 311, 456 S.E.2d 538, 540 (1995)
(citations omitted).
Code § 16.1-283(B)
The trial court found that DSS presented clear and
convincing evidence that it was in the best interests of the
children to terminate father's parental rights. The court
concluded that the neglect suffered by the children presented a
serious and substantial threat to their life, health or
development and that it was not reasonably likely that the
conditions which resulted in their neglect could be substantially
corrected or eliminated within a reasonable period of time. See
Code § 16.1-283(B)(2). The court also found that DSS presented
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prima facie evidence of the conditions set out in Code
§ 16.1-283(B)(2) by proving that father habitually abused or was
addicted to alcohol to the extent that his parental ability was
seriously impaired and that father "has without good cause not
responded to or followed through with the recommended and
available treatment, which could have improved the capacity for
adequate parental functioning." See Code § 16.1-283(B)(2)(b).
The evidence established that father was addicted to
alcohol. DSS repeatedly provided father with alcohol-related
counseling and treatment services. Between May 1996 and
mid-1997, father attended alcohol abuse programs at the Salvation
Army, the Alexandria Substance Abuse Program, and the Men's Day
Support Program. Despite this assistance, father was intoxicated
during court appearances and visitation times. The evidence also
demonstrated that father's intoxication placed the children at
risk. While the court noted that father voluntarily entered
Alcoholics Anonymous shortly before the trial, the court did not
believe that effort would fare any better than his previous
efforts.
The evidence also established that the children faced
neglect and abuse while in the custody of their parents. DSS
repeatedly identified hygiene, housing, supervision, parenting
issues, school attendance, and domestic violence as problems
within the family. The oldest child, who has cerebral palsy,
regularly came to school with unclean clothing and underwear, an
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unwashed face, and unbrushed teeth and hair. He was unable to
feed himself with a fork, and his parents expected him to eat his
food face down from his plate. His wheelchair was encrusted with
dead roaches. The younger children had better hygiene, but their
attendance at school was poor, and they dressed in clothing that
was inappropriate for the weather. A DSS social worker testified
that the parents continued to have problems with housing and
domestic violence.
The evidence indicated that the children thrived, physically
and emotionally, while in foster care. The boy gained weight,
increased strength, and excelled in school. The two girls, who
were in the same foster home, were also doing well, and appeared
bonded emotionally to their foster parents. The children
expressed the desire to see each other. There was evidence that
the middle child had some difficulty dealing with father's
diminished role and would need emotional counselling.
The record supports the trial court's finding that DSS
established by clear and convincing evidence that termination of
father's parental rights was in the best interests of the
children and that it was not reasonably likely that the
conditions which resulted in their neglect could be substantially
corrected or eliminated within a reasonable period of time.
Code § 16.1-283(C)
Code § 16.1-283(C) provides, in pertinent part, that the
court may terminate residual parental rights to a child placed in
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foster care as a result of court commitment, an entrustment
agreement or other voluntary relinquishment, "if the court finds,
based upon 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 to remedy substantially the conditions which
led to the child's foster care placement," despite "reasonable
and appropriate efforts" from "social, medical, mental health or
other rehabilitative agencies to such end." Code
§ 16.1-283(C)(2). Evidence that the parent failed, without good
cause, "to make reasonable progress towards the elimination of
the conditions which led to the child's foster care placement in
accordance with . . . a [jointly designed and agreed upon] foster
care plan" is prima facie evidence that the parent was unwilling
or unable to substantially remedy the underlying conditions.
Code § 16.1-283(C)(3)(b).
DSS presented evidence concerning father's alcohol abuse and
spousal abuse, and of its efforts to assist father in addressing
those conditions. Despite extensive intervention, father was
unwilling or unable to remedy his problems with alcohol. A DSS
social worker noted that father came to visitation many times
under the influence of alcohol, including as recently as July
1997. Credible evidence supports the trial court's findings.
Accordingly, the decision of the circuit court is summarily
affirmed.
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Affirmed.
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