COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
RUTH L. GENTRY
MEMORANDUM OPINION *
v. Record No. 1340-97-3 PER CURIAM
MARCH 17, 1998
HARRISONBURG-ROCKINGHAM
SOCIAL SERVICES DISTRICT AND
AMBER MARIE PRESGRAVES, AN INFANT
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
John J. McGrath, Jr., Judge
(Thomas A. Howell, on briefs), for appellant.
(L. Quinn Kaylor; Christel L. Lewis, Guardian
ad litem; Lewis, Ruple, Hart & Temeles, on
brief), for appellees.
Ruth L. Gentry appeals the decision of the circuit court
terminating her residual parental rights to her younger daughter.
Gentry contends that the trial court erred when it found that
the Harrisonburg-Rockingham Social Services District (Social
Services) presented clear and convincing evidence sufficient
under Code § 16.1-283(B) and (C) to terminate her parental
rights. 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.
"Code § 16.1-283 embodies 'the statutory scheme for the
. . . termination of residual parental rights in this
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Commonwealth.'" Lecky v. Reed, 20 Va. App. 306, 311, 456 S.E.2d
538, 540 (1995) (citation omitted). "This 'scheme 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
'the child's best interest is the paramount concern.'" Id.
(citations omitted).
"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."
Logan v. Fairfax County Dep't of Human Dev., 13 Va. App. 123,
128, 409 S.E.2d 460, 463 (1991) (citations omitted).
The child was removed from Gentry's custody on December 22,
1994, following allegations that Bruce W. Presgraves, the child's
father, had physically abused the child. Presgraves was living
with Gentry, the child, and Gentry's older daughter. By order
entered April 20, 1995, Presgraves pleaded guilty to felony child
abuse. His sentence was suspended with the condition, among
others, that he not threaten, harm, or harass Gentry or the
children for six months. Gentry regained physical custody of the
child in August 1995. Pursuant to the agreement Gentry signed at
that time, she agreed to continue counseling; cooperate with the
in-home services provided; not allow any contact between the
child and Presgraves; maintain a stable home; and keep Social
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Services informed of changes in her address or financial
circumstances. In August 1995, however, after an eight-month
absence, Presgraves began staying overnight with Gentry. Gentry
testified at trial that she signed the agreement knowing that she
was hiding the fact of her renewed relationship with Presgraves
from Social Services.
In February 1996, the juvenile and domestic relations
district court granted Presgraves' petition for visitation with
the child, and two supervised visitations were held. In the
February service plan, Social Services noted that Gentry was
cooperating and that the child had adjusted to living with
Gentry. However, on February 29, 1996, Social Services
discovered Gentry and Presgraves arriving together with the child
for Presgraves' visitation. Social Services stopped Presgraves'
visitations, and, several days later, placed the child in foster
care. In April 1996, Social Services began termination
proceedings in district court. Gentry appealed the district
court's termination order to the circuit court. Following two
days of testimony, the circuit court entered an order terminating
the parental rights of Presgraves and Gentry. Gentry appealed.
Code § 16.1-283(B)
The trial court found that clear and convincing evidence
established that it was in the best interests of the child to
terminate Gentry's parental rights because the neglect and abuse
suffered by the child presented a serious and substantial threat
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to her life, health or development. See Code § 16.1-283(B)(1).
The trial court further found that it was "not reasonably likely
that the conditions which resulted in the neglect or abuse
[could] be substantially corrected or eliminated" to allow the
child's safe return to Gentry within a reasonable period of time.
See Code § 16.1-283(B)(2). The trial court also found that
Social Services presented prima facie evidence of the conditions
set out in Code § 16.1-283(B)(2) by presenting proof that Gentry
"without good cause, [has] not responded to or followed through
with appropriate, available and reasonable rehabilitative efforts
. . . designed to reduce, eliminate or prevent the neglect or
abuse of the child." Code § 16.1-283(B)(2)(c).
Gentry contends that there was insufficient evidence that
her daughter was neglected. However, the removal order noted
that Gentry "does not object to emergency placement due to
threats against her" by Presgraves. At trial, Gentry could not
remember if she agreed to the placement. Her testimony
demonstrated that Presgraves was threatening her because she had
reported that he broke the child's collarbone. As noted by the
trial court, Gentry voluntarily relinquished custody of her
daughter in December 1994 after Presgraves broke the child's
collarbone. Gentry admitted that Presgraves "harassed" her to
withdraw her incriminating comments, but defended him by
asserting that he never physically abused her when harassing her.
The trial court found that the evidence was clear and convincing
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that the child was neglected. That finding was not plainly
wrong.
Gentry also contends that there was insufficient evidence
that she failed to respond to the rehabilitative efforts on the
part of Social Services. The trial court found, based upon the
evidence and the testimony of the parties, social workers, and
expert witnesses, that Gentry suffers from a mental or emotional
deficiency in that she is drawn to relationships with abusive
men. Both her children were fathered by men who were
demonstrably abusive. Gentry admitted that Presgraves was
abusive, but she was unable or unwilling to avoid those
relationships. Dr. Mario Dennis, a psychologist who evaluated
Gentry, testified that it was likely that Gentry would continue
to enter into abusive relationships in the future.
Gentry's service agreement with Social Services expressly
prohibited contact with Presgraves. While Gentry suggests that
she did not realize the consequences of continuing her
relationship with Presgraves, it is abundantly clear from the
record that Gentry knew that Presgraves was not to have contact
with her and her children. Both Gentry and Presgraves admitted
that he would hide in the woods behind her apartment if a
caseworker or social worker arrived.
Despite receiving support through abuse counseling, in-home
parenting services, and additional services, Gentry maintained
her secretive relationship with Presgraves. While Gentry
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completed the steps required in the Social Services' plan,
attended weekly support groups, and appeared to be cooperating,
she was violating the plan and placing herself and her child at
risk for continued abuse by residing with Presgraves.
The child was placed in foster care because Gentry was
unable to keep her safe. While the evidence does not indicate
that the child was physically harmed during the time Gentry and
Presgraves were secretly reestablishing their relationship, the
record demonstrates that Presgraves threatened and abused
Gentry's older daughter. The trial court found that Gentry "was
unable or unwilling to remove herself from the abusive
relationship with [Presgraves] and actively sought to conceal her
on-going relationship with [Presgraves] from the case workers."
The trial court found that Social Services established by clear
and convincing evidence that it was in the child's best interests
to terminate Gentry's parental rights because Gentry had been
unwilling or unable to stay out of a relationship which was
demonstrably abusive to herself and her children. This finding
was not plainly wrong.
Code § 16.1-283(C)
The trial court found, by clear and convincing evidence,
that it was in the best interests of the child to terminate
Gentry's parental rights because Gentry had been unwilling or
unable, without good cause and for a period exceeding twelve
months, to remedy the conditions which led to the child's foster
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care placement, notwithstanding the "reasonable and appropriate
efforts" of Social Services. See Code § 16.1-283(C)(2). The
trial court also found that Social Services presented prima facie
evidence of the subsection (C)(2) conditions by proving that
Gentry, without good cause, failed 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 foster care plan. See Code § 16.1-283(C)(3)(b).
It is uncontested that Gentry received appropriate
rehabilitative and support services through Social Services.
Nevertheless, despite repeatedly stating her resolve to avoid
Presgraves, repeatedly denying to Social Services and her
counselors that she was continuing the relationship, and
repeatedly being told of the consequences, Gentry resumed her
relationship with Presgraves. From December 1994, when,
according to her testimony, Gentry wanted to break up with
Presgraves, until September 1996, Gentry continued to turn to
Presgraves when the opportunity arose. Gentry's failure to end
the relationship demonstrated that she was "unable to make
reasonable progress towards the elimination of the conditions
which led to the child's foster care placement."
Gentry contends that Social Services failed to adequately
inform her that she faced the termination of her parental rights
if she failed to satisfy the terms of her agreement with Social
Services. That claim is without support. The record reflects
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that Gentry was informed that she faced termination of her
parental rights. Gentry's testimony established that she knew
Social Services could "take" her children away if she failed to
follow through on her responsibilities under the agreement.
Despite all the counseling, therapy, and support aimed at
alerting Gentry to the seriousness of her situation and the risks
faced by herself and her children, Gentry asserts that it took
the actual termination order for her to realize the consequences
of her action. Her child should not bear the burden of Gentry's
unwillingness or inability to recognize the seriousness of the
situation. "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 Social
Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990).
Use of Less Drastic Alternatives
Gentry contends that the trial court failed to consider less
drastic alternatives to termination of her parental rights. See
Code § 16.1-278.2 "Those remedies, which merely effect 'a
transitory change in the child's custodial status . . . without
affecting other parental rights,' are specifically 'designed for
the case of a parent who shows extenuating circumstances and
demonstrates [her] potential for rehabilitation as a fit
parent.'" Edwards v. County of Arlington, 5 Va. App. 294, 312-14
S.E.2d 644, 654-55 (1987) (citation omitted).
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The record demonstrates that Social Services explored
placement with other relatives, but found such placement to be
unavailable or unadvisable. The trial court's decision not to
place the child with other relatives is fully supported by the
evidence.
The trial court did not find convincing Gentry's stated
intention to avoid abusive relationships in the future. Her past
behavior did not demonstrate a strong potential for
rehabilitation. We must rely on the inherent credibility
determinations which underlie the trial court's decision, as it
heard and saw the witnesses testify. The record demonstrates
that the trial court considered less drastic alternatives, and we
find no error in the trial court's decision to terminate Gentry's
parental rights.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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