COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Decker and O’Brien
UNPUBLISHED
Argued at Richmond, Virginia
DANIEL THORNSBURY
MEMORANDUM OPINION* BY
v. Record No. 2035-16-2 JUDGE MARY GRACE O’BRIEN
AUGUST 15, 2017
CHESTERFIELD-COLONIAL HEIGHTS
DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Frederick G. Rockwell, III, Judge
Todd M. Ritter (Daniels, Williams, Tuck & Ritter, on brief), for
appellant.
Emily C. Russell, Assistant County Attorney; Lisa Way Piper,
Guardian ad litem for the infant children (Jeffrey L. Mincks, County
Attorney, on brief), for appellee.
Daniel Thornsbury (“appellant”), the father of two children, appeals the termination of his
residual parental rights under Code § 16.1-283. He asserts two assignments of error:
1. The trial court committed reversible error by terminating the
Appellant’s residual parental rights when clear and convincing
evidence was not presented to prove it was in the best interests of
the children to terminate Appellant’s residual parental rights.
2. The trial court committed reversible error by terminating
Appellant’s residual parental rights when clear and convincing
evidence was not presented to prove he had, without good cause,
been unwilling or unable within a reasonable period of time, not
to exceed twelve (12) months from the date the children were
placed in foster care, to substantially remedy the conditions which
led to the children’s placement in foster care.
Finding no error, we affirm.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND
We view the evidence in the light most favorable to the party prevailing at trial, the
Chesterfield-Colonial Heights Department of Social Services (“the Department”). Toms v. Hanover
Dep’t of Soc. Servs., 46 Va. App. 257, 262, 616 S.E.2d 765, 767 (2005). Appellant was the sole
custodian of his two daughters, E.T., born August 4, 2004, and J.T., born May 4, 2006.1 Between
April 2012 and October 2014, Richmond Child Protective Services (“RCPS”) received three
complaints alleging that appellant had abused and neglected the children due to his alcohol and
substance abuse. RCPS conducted a family assessment and implemented a safety plan; however,
the agency closed the case when appellant and his children moved to Chesterfield County.
On October 2, 2015, the Department received a referral from Chesterfield County Child
Protective Services (“CPS”) concerning appellant’s care of his daughters. The referral alleged that
appellant, while intoxicated, grabbed J.T.’s shirt and spanked her after she tried to take his beer
away. The caller also reported that the children did not have sufficient food or weather-appropriate
clothing. On October 9, 2015, the Department received another CPS referral that appellant, who
was again intoxicated, took the girls to a residence where he had them sleep on a “smelly, dirty
couch” while he “smok[ed] something out of a glass pipe.” On October 12, 2015, RCPS received a
report that appellant’s mother’s paramour, with whom she resided, had sexually abused E.T. and
attempted to sexually assault J.T.
A Chesterfield County detective and a CPS family services specialist interviewed appellant
at his home on October 21, 2015. They observed a hole in the roof where a tree had fallen, and also
noted that appellant appeared to be under the influence of alcohol. Appellant acknowledged
drinking a twelve-pack of beer on each of his two days off per week, and he admitted to smoking
1
The children’s mother pled guilty to child endangerment in November 2011, and agreed
not to have contact with children under the age of eighteen as a condition of her parole.
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marijuana the night that the girls slept on the couch. He also said that he had used cocaine within
the preceding two days. Appellant admitted that he brought his daughters back to his mother’s
house despite the pending sexual assault investigation of her paramour because he did not have
another babysitter for them.
Appellant agreed to enter into a safety plan with the Department requiring him to abstain
from drugs and alcohol in the presence of his children, vacate the residence, and leave the children
in the physical custody of his roommate. Appellant subsequently failed to bring his daughters to a
forensic interview concerning the sexual assault complaint, and the Department was unable to
contact him. As a result of concerns about the girls’ safety, the Department assumed emergency
custody of E.T. and J.T. on October 23, 2015.
On December 18, 2015, the Chesterfield Juvenile and Domestic Relations District Court
(“JDR court”) approved an initial foster care plan with the goal of returning the children to their
father. The primary focus of the plan was for appellant to cease his use of alcohol and illicit
substances. The JDR court included a provision that “[appellant] shall not consume any alcohol or
illegal substance during the pendency of this plan.” The Department agreed to assist appellant in
obtaining substance abuse treatment. Additionally, appellant was required to comply with other
conditions such as maintaining employment and not allowing his mother’s paramour to have any
contact with the children.
Although appellant initially complied with some of the plan’s conditions by maintaining
employment and completing a psychological evaluation, he failed to abstain from drugs and
alcohol. During his psychological interview, he stated that he did not believe his children had been
affected by his drug and alcohol use. He also indicated in the interview that he believed his
daughter fabricated the sexual abuse allegations against his mother’s paramour.2 In March 2016,
2
RCPS later determined that the complaint was “founded.”
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appellant completed the intake form for a substance abuse treatment program but did not return for
further services. He tested positive for cocaine or marijuana approximately ten times between
December 2015 and July 2016. He refused or missed approximately fifteen screens between March
and August 2016. During the pendency of the foster care plan, appellant returned fewer than five
clean screens.
In September 2016, the Department changed the goal of the foster care plan to adoption and
filed a petition to terminate appellant’s parental rights. The Department asserted that due to
appellant’s continuing substance abuse issues, it was not in the children’s best interests to return to
his care. Following a hearing, the JDR court approved the foster care plan and terminated
appellant’s parental rights.
Appellant appealed, and the circuit court conducted a de novo hearing on November 10,
2016. At that hearing, the Department’s social worker testified that visits between appellant and the
children “went well overall and that [appellant] was receptive to parenting instruction.” However,
the social worker also stated that appellant failed most of his drug tests, and his lack of
transportation made it difficult for him to receive substance abuse treatments, despite the
Department’s offer to transport him to all counseling and therapy sessions. Additionally, appellant
missed a team decision-making meeting and a permanency planning hearing.
Appellant testified that he attended four substance abuse classes but stopped because the
classes conflicted with his work schedule. He told the court that he was unable to enroll in another
drug treatment program because he did not bring the proper documentation. He also acknowledged
that he had returned positive screens for narcotics; however, he asserted that he was currently not
using drugs. At that point, the court directed appellant to submit to a urine screen. The results were
inconclusive.
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Appellant described his living situation. He was residing in a studio apartment located
above his place of employment. He advised that he built a partition in the apartment to create a
separate bedroom for his daughters. Because appellant works until two a.m., he planned to ask his
sister to bring his sixteen-year-old niece to babysit his daughters while he was working. He did not
contest that while the children have been in foster care, J.T. has continued to do well in school and
E.T.’s grades have improved.
At the conclusion of the hearing, appellant requested that the court grant him three more
months to comply with the foster care plan. He argued that his mother’s death in August 2016, ten
months after his daughters were placed in foster care, was an “extraordinary circumstance” that
warranted granting him additional time. The court denied appellant’s request and entered final
orders terminating his parental rights with respect to each child.
ANALYSIS
When reviewing the termination of residual parental rights, this Court presumes the trial
court “thoroughly weighed all the evidence, considered the statutory requirements, and made its
determination based on the child’s best interests.” Fields v. Dinwiddie Cty. Dep’t of Soc. Servs., 46
Va. App. 1, 7, 614 S.E.2d 656, 659 (2005) (quoting Farley v. Farley, 9 Va. App. 326, 329, 387
S.E.2d 794, 796 (1990)). The court has “broad discretion in making the decisions necessary to
guard and to foster a child’s best interests,” and its decision will not be reversed “unless plainly
wrong or without evidence to support it.” Farley, 9 Va. App. at 328, 387 S.E.2d at 795.
A. Assignment of Error One
Appellant contends that the Department failed to prove that terminating his parental rights
was in his daughters’ best interests. Code § 16.1-283(C) provides:
The residual parental rights of a parent or parents of a child placed in
foster care as a result of court commitment . . . may be terminated if
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the court finds, based upon clear and convincing evidence, that it is
in the best interests of the child.
A court must consider several factors when determining a child’s best interests, such as
the age and physical and mental condition of the child or children;
the age and physical and mental condition of the parents; the
relationship existing between each parent and each child; the needs
of the child or children; the role which each parent has played, and
will play in the future, in the upbringing and care of the child or
children; and such other factors as are necessary.
Harrison v. Tazewell Cty. Dep’t of Soc. Servs., 42 Va. App. 149, 161, 590 S.E.2d 575, 581-82
(2004) (quoting Barkey v. Commonwealth, 2 Va. App. 662, 668, 347 S.E.2d 188, 191 (1986)).
Here, appellant’s substance abuse issues prevented him from effectively parenting his
children. The initial RCPS referral resulted from complaints concerning appellant’s behavior
around his daughters while he was under the influence of drugs and alcohol. Despite express
prohibitions in the foster care plan, appellant continued to consume alcohol and illegal substances.
He did not complete drug treatment and regularly tested positive for cocaine and marijuana.
Further, appellant did not cooperate with the investigation into the alleged sexual abuse of
the children. Because he believed that the allegations were false, appellant allowed contact between
the children and the alleged perpetrator until the Department told appellant not to bring the children
to his mother’s home again. He also ignored the RCPS request to interview the children.
Appellant conceded that both girls were doing well in their foster care placement. They
were well-adjusted and on-track academically. Considering all the evidence, the court did not err by
finding that clear and convincing evidence established that termination of appellant’s parental rights
was in the best interests of the children.
B. Assignment of Error Two
Appellant contends the court erred by finding that he was unable to remedy the conditions
that led to his daughters’ foster care placement and that termination was appropriate under Code
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§ 16.1-283(C)(2). He argues that he corrected some of the conditions, and therefore he should have
been afforded more time to comply with the foster care plan before his rights were terminated.
Code § 16.1-283(C)(2) provides for termination of parental rights if
[t]he parent or parents, without good cause, have been unwilling or
unable within a reasonable period of time not to exceed 12 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 or parents,
without good cause, have 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 their obligations under and within the time limits or
goals set forth in a foster care plan filed with the court . . . shall
constitute prima facie evidence of this condition.
Appellant acknowledges that he failed to comply with the alcohol and substance abuse
components of the foster care plan. However, he argues that the court should have granted him
additional time to address these issues because his mother’s death was an “extraordinary
circumstance” that prevented him from abstaining from drugs and alcohol and completing substance
abuse treatment. He asserts that if he were given “another three months,” he would have been able
to remedy these conditions which required his daughters’ placement into foster care.
We have held that “past actions and relationships over a meaningful period serve as good
indicators of what the future may be expected to hold.” Linkous v. Kingery, 10 Va. App. 45, 56,
390 S.E.2d 188, 194 (1990) (quoting Frye v. Spotte, 4 Va. App. 530, 536, 359 S.E.2d 315, 319
(1987)). Nothing in the record supports appellant’s contention that he could successfully remedy
his alcohol and drug addiction in three months. The children entered foster care in October 2015.
When his mother died on August 20, 2016, appellant had already failed approximately ten drug tests
and refused as many as fifteen others. Additionally, despite the Department’s offer of assistance
with transportation, he failed to continue attending drug treatment.
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“It is clearly not in the best interests of [the children] 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 Cty. Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990).
At the time the court entered the order terminating appellant’s residual parental rights, the children
had been in foster care for thirteen months. Although appellant had maintained gainful employment
and found stable housing, his substance abuse, which remained unabated, significantly limited his
ability to care for his daughters. We find no error in the court’s determination that appellant had not
substantially remedied the conditions that brought his daughters into foster care, and accordingly,
the court properly terminated appellant’s residual parental rights.
Affirmed.
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Daniel Thornsbury v. Chesterfield-Colonial Heights Department of Social Services
Combined Opinion