COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
AUBRIE LYN MARLOWE MEMORANDUM OPINION * v. Record No. 1913-99-2 PER CURIAM FEBRUARY 15, 2000 CHESTERFIELD/COLONIAL HEIGHTS DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Herbert C. Gill, Jr., Judge
(Renay M. Fariss, on brief), for appellant.
(Steven L. Micas, County Attorney; Michael S.J. Chernau, Senior Assistant County Attorney, on brief), for appellee.
(Janet E. Moran, on brief), guardian ad litem for Brittany Marlowe.
Aubrie Lyn Marlowe appeals the decision of the circuit court
terminating her parental rights to her infant daughter, Brittany.
On appeal, Marlowe contends that the trial court erred by finding
that (1) the Chesterfield/Colonial Heights Department of Social
Services (DSS) complied with the requirements of Code § 16.1-283;
and (2) the Department complied with the requirements of
established case law to make reasonable and appropriate efforts to
strengthen the parent-child relationship. Upon reviewing the
record and briefs of the parties, we conclude that this appeal is
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. 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 making the decisions necessary to guard
and to foster a 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) (citations omitted).
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. On review, "[a] trial court is presumed to have thoroughly weighed all the evidence, considered the statutory requirements, and made its determination based on the child's best interests."
Id. "Where, as here, the court hears the evidence ore tenus, its
finding is entitled to great weight and will not be disturbed on
appeal unless plainly wrong or without evidence to support it."
Martin v. Pittsylvania County Dep't of Soc. Servs., 3 Va. App. 15,
20, 348 S.E.2d 13, 16 (1986).
On appeal, under familiar principles, we view the evidence
in the light most favorable to DSS, the party prevailing below.
See id. The child was born March 28, 1998, when Marlowe was
eighteen years old and incarcerated at the Bon Air Juvenile
Correctional Center. At birth, the child was infected with
cytomegloinclusion virus. As a result of the virus, the child has
no hearing in one ear and has partial hearing with a risk of
- 2 - greater hearing loss in the other ear. She has vision problems.
She was born with calcium deposits on her brain, causing
developmental delays. At the time of the hearing, she had a
chronological age of thirteen months but a cognitive age of six
months. She also has difficulty in maintaining balance and
walking due to cerebral palsy. She requires hours of physical and
speech therapy every day.
On April 29, 1998, Marlowe signed an entrustment agreement
giving the Department custody of the child. No visitation
schedule was set, although the agreement indicated that a "regular
visiting schedule will be arranged." Marlowe had two visits with
the child prior to August 1998.
The initial foster care plan, dated July 13, 1998, sought to
place the child with relatives. Under the plan, Marlowe was given
three months to find a suitable family member to care for the
child. The Department agreed to arrange transportation for visits
between Marlowe and the child "as long as [Marlowe] makes plans
for visits 48 hours in advance." Marlowe was not expected to
provide financial assistance.
The Department filed an amended foster care plan on November
2, 1998, with the goal changed to adoption. The amended plan
noted that the child was "very delayed in all areas of
development." The plan also noted that Marlowe remained
incarcerated and that no family member was located to have
custody. The plan further indicated that the child's foster
- 3 - mother brought her to visit Marlowe twice and that Marlowe did not
request additional visits.
After a hearing ore tenus, the trial court granted the
Department's petition to terminate Marlowe's parental rights
pursuant to Code § 16.1-283.
Code § 16.1-283
Marlowe contends that the trial court erred in finding that
the Department satisfied the statutory requirements of Code
§ 16.1-283(C)(1). She contends that the Department did not
prove she lacked good cause in failing to maintain contact or
provide for the child's future, and the Department failed to
show that it made reasonable and appropriate efforts to
communicate with her and to strengthen the parent-child
relationship. The record does not support these contentions.
Marlowe was incarcerated at the time of the hearing. Her
release date was uncertain, although she would be released no
later than when she turned twenty-one. Marlowe progressed well
while in the correctional center. She received her GED and took
additional vocational classes. Marlowe indicated she expected
to live with her aunt upon her release, who would care for the
child while Marlowe went to college and worked.
Notwithstanding its praise for Marlowe's demonstrated
improvements in her own life, the trial court determined that
Marlowe's expressed plans were insufficient to meet the best
interests of the child. Although Marlowe's plans relied upon
- 4 - her aunt's assistance, the aunt admitted at the hearing that she
had no idea what the child's viral disease involved and knew
only that the child was "deaf in one ear and . . . might be
blind when she turns five." She did not know what other
challenges the child faced. Although Marlowe testified that she
was prepared to do all that was required to assist the child,
the evidence indicated that Marlowe never asked the foster
mother, her counselor, or anyone with the Department what care
the child required on a daily basis.
The evidence also does not support Marlowe's contention
that the Department failed to promote visitation or to
strengthen the parent-child relationship. The evidence
indicated that limits on visitation arose largely due to the
restrictions imposed by the correctional facility. In addition,
although the original foster plan sought to place the child with
a family member, Marlowe failed to name a family member willing
to take custody.
The trial court found that the Department proved by clear
and convincing evidence that it was in the child's best
interests to terminate Marlowe's parental rights. The record
supports that finding.
Reasonable Efforts
Marlowe also contends the Department failed to make
reasonable and appropriate efforts to strengthen the bond
between her and the child, as required by Code § 16.1-283(C)(1)
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
AUBRIE LYN MARLOWE MEMORANDUM OPINION * v. Record No. 1913-99-2 PER CURIAM FEBRUARY 15, 2000 CHESTERFIELD/COLONIAL HEIGHTS DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Herbert C. Gill, Jr., Judge
(Renay M. Fariss, on brief), for appellant.
(Steven L. Micas, County Attorney; Michael S.J. Chernau, Senior Assistant County Attorney, on brief), for appellee.
(Janet E. Moran, on brief), guardian ad litem for Brittany Marlowe.
Aubrie Lyn Marlowe appeals the decision of the circuit court
terminating her parental rights to her infant daughter, Brittany.
On appeal, Marlowe contends that the trial court erred by finding
that (1) the Chesterfield/Colonial Heights Department of Social
Services (DSS) complied with the requirements of Code § 16.1-283;
and (2) the Department complied with the requirements of
established case law to make reasonable and appropriate efforts to
strengthen the parent-child relationship. Upon reviewing the
record and briefs of the parties, we conclude that this appeal is
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. 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 making the decisions necessary to guard
and to foster a 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) (citations omitted).
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. On review, "[a] trial court is presumed to have thoroughly weighed all the evidence, considered the statutory requirements, and made its determination based on the child's best interests."
Id. "Where, as here, the court hears the evidence ore tenus, its
finding is entitled to great weight and will not be disturbed on
appeal unless plainly wrong or without evidence to support it."
Martin v. Pittsylvania County Dep't of Soc. Servs., 3 Va. App. 15,
20, 348 S.E.2d 13, 16 (1986).
On appeal, under familiar principles, we view the evidence
in the light most favorable to DSS, the party prevailing below.
See id. The child was born March 28, 1998, when Marlowe was
eighteen years old and incarcerated at the Bon Air Juvenile
Correctional Center. At birth, the child was infected with
cytomegloinclusion virus. As a result of the virus, the child has
no hearing in one ear and has partial hearing with a risk of
- 2 - greater hearing loss in the other ear. She has vision problems.
She was born with calcium deposits on her brain, causing
developmental delays. At the time of the hearing, she had a
chronological age of thirteen months but a cognitive age of six
months. She also has difficulty in maintaining balance and
walking due to cerebral palsy. She requires hours of physical and
speech therapy every day.
On April 29, 1998, Marlowe signed an entrustment agreement
giving the Department custody of the child. No visitation
schedule was set, although the agreement indicated that a "regular
visiting schedule will be arranged." Marlowe had two visits with
the child prior to August 1998.
The initial foster care plan, dated July 13, 1998, sought to
place the child with relatives. Under the plan, Marlowe was given
three months to find a suitable family member to care for the
child. The Department agreed to arrange transportation for visits
between Marlowe and the child "as long as [Marlowe] makes plans
for visits 48 hours in advance." Marlowe was not expected to
provide financial assistance.
The Department filed an amended foster care plan on November
2, 1998, with the goal changed to adoption. The amended plan
noted that the child was "very delayed in all areas of
development." The plan also noted that Marlowe remained
incarcerated and that no family member was located to have
custody. The plan further indicated that the child's foster
- 3 - mother brought her to visit Marlowe twice and that Marlowe did not
request additional visits.
After a hearing ore tenus, the trial court granted the
Department's petition to terminate Marlowe's parental rights
pursuant to Code § 16.1-283.
Code § 16.1-283
Marlowe contends that the trial court erred in finding that
the Department satisfied the statutory requirements of Code
§ 16.1-283(C)(1). She contends that the Department did not
prove she lacked good cause in failing to maintain contact or
provide for the child's future, and the Department failed to
show that it made reasonable and appropriate efforts to
communicate with her and to strengthen the parent-child
relationship. The record does not support these contentions.
Marlowe was incarcerated at the time of the hearing. Her
release date was uncertain, although she would be released no
later than when she turned twenty-one. Marlowe progressed well
while in the correctional center. She received her GED and took
additional vocational classes. Marlowe indicated she expected
to live with her aunt upon her release, who would care for the
child while Marlowe went to college and worked.
Notwithstanding its praise for Marlowe's demonstrated
improvements in her own life, the trial court determined that
Marlowe's expressed plans were insufficient to meet the best
interests of the child. Although Marlowe's plans relied upon
- 4 - her aunt's assistance, the aunt admitted at the hearing that she
had no idea what the child's viral disease involved and knew
only that the child was "deaf in one ear and . . . might be
blind when she turns five." She did not know what other
challenges the child faced. Although Marlowe testified that she
was prepared to do all that was required to assist the child,
the evidence indicated that Marlowe never asked the foster
mother, her counselor, or anyone with the Department what care
the child required on a daily basis.
The evidence also does not support Marlowe's contention
that the Department failed to promote visitation or to
strengthen the parent-child relationship. The evidence
indicated that limits on visitation arose largely due to the
restrictions imposed by the correctional facility. In addition,
although the original foster plan sought to place the child with
a family member, Marlowe failed to name a family member willing
to take custody.
The trial court found that the Department proved by clear
and convincing evidence that it was in the child's best
interests to terminate Marlowe's parental rights. The record
supports that finding.
Reasonable Efforts
Marlowe also contends the Department failed to make
reasonable and appropriate efforts to strengthen the bond
between her and the child, as required by Code § 16.1-283(C)(1)
- 5 - and relevant case law. In Cain v. Commonwealth, 12 Va. App. 42,
402 S.E.2d 682 (1991), this Court stated that incarceration does
not automatically satisfy the evidentiary requirements of Code
§ 16.1-283 and that the agency must make "[r]easonable and
appropriate efforts . . . to assist a delinquent parent in
remedying the conditions that lead to a parent's temporary
relinquishment of the children . . . ." Cain, 12 Va. App. at 45,
402 S.E.2d at 683. However, whether the Department made
"'reasonable and appropriate' efforts can only be judged with
reference to the circumstances of a particular case." Ferguson v.
Stafford County Dep't of Soc. Servs., 14 Va. App. 333, 338, 417
S.E.2d 1, 4 (1992).
Marlowe received numerous services while at the correctional
center, including group therapy and classes on independent living
and child care. Although Marlowe also took various vocational
classes, she had no definite means of support upon her release and
her release date was uncertain. The child required immediate and
extensive services daily. Despite the stated desire of Marlowe
and her aunt to provide the child with all necessary care, the
evidence clearly established that their willingness was not based
upon an informed assessment of their ability to meet the child's
needs.
The trial court determined that the Department presented
clear and convincing evidence satisfying the requirements of Code
§ 16.1-283(C)(1) and (2) and that it was in the child's best
- 6 - interests to terminate Marlowe's parental rights. Evidence
supports the trial court's decision.
Accordingly, the decision of the circuit court is summarily
affirmed.
- 7 -