Bernice Canter v. City of Bristol Department of Social Services

• Court: Court of Appeals of Virginia
• Decided: December 13, 2005
• Docket: 0507053
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Humphreys and Senior Judge Overton

BERNICE CANTER MEMORANDUM OPINION* v. Record No. 0507-05-3 PER CURIAM DECEMBER 13, 2005 CITY OF BRISTOL DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL Charles H. Smith, Jr., Judge Designate

(Kimberly C. Haugh, on brief), for appellant. Appellant submitting on brief.

(G. Walter Bressler; E. Gay Leonard, Guardian ad litem for the minor children; Bressler, Curcio & Stout, PC, on brief), for appellee. Appellee and Guardian ad litem submitting on brief.

Bernice Canter contends the trial court erred in terminating her parental rights to two minor

children and in finding that such termination was in the best interests of the children.1 We affirm

the trial court’s decision.

Background

We view the evidence in the light most favorable to the prevailing party below and grant

to it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax County Dep’t of

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Although the trial court’s final order and the parties refer to Code § 16.1-283(C)(ii), § 16.1-283 does not contain a subsection (ii) under subsection (C). From the content of the parties’ argument and the trial court’s order, we assume this was an inadvertent error and the trial court and the parties meant to refer to Code § 16.1-283(C)(2). Accordingly, we remand this case to the trial court, for the sole purpose of correcting this clerical error so that the final order reflects that Canter’s parental rights were terminated under Code § 16.1-283(C)(2), not Code § 16.1-283(C)(ii). In addition, for purposes of this opinion, we will refer to Code § 16.1-283(C)(2), not Code § 16.1-283(C)(ii). Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991). So viewed, the evidence

proved that on February 7, 1999, the City of Bristol Department of Social Services received a

complaint that Canter threw her older daughter, who was two and one-half years old at that time,

onto a concrete floor, bruising her head. The complaint indicated Canter and her friends were

intoxicated at the time. During the Department’s investigation of that complaint, Canter said she

did not remember the incident because she temporarily blacked out. Canter did not appeal the

Department’s finding of physical abuse and inadequate supervision. After law enforcement

investigated, Canter was charged with and pled guilty to misdemeanor child abuse in the juvenile

and domestic relations district court. The court issued a child protective order and took the

criminal charge under advisement upon conditions that Canter remain of good behavior,

complete parenting and anger management classes, and commit no further acts of child abuse for

a period of twelve months. In March 2000, the court dismissed the charge and the child

protective order because appellant had completed the required classes.

The Department continued to provide ongoing services to Canter. Margie Beatrice

Wilson, a child protective services worker, began working with Canter in March 2000, while the

children were living with Canter. Wilson received a complaint from Canter’s mother that the

older girl had burns on her hand consistent with cigarette burns. When Wilson investigated,

Canter blamed the burns on her mother’s boyfriend. Wilson determined the complaint was

unfounded after a physician could not determine whether the marks were cigarette burns.

Wilson later met with Canter on numerous occasions to discuss complaints regarding Canter

neglecting the older girl, ingesting drugs, having numerous persons in her home, and giving the

girl cold showers as punishment. Canter denied that those events occurred.

On May 31, 2000, when the older girl was three, Wilson investigated a complaint that she

had a large bruise on the back of her leg and photographed the bruise. Canter said that she had

-2- allowed the girls to spend the night with a friend and that the friend caused the bruise. That

night, Wilson went to an emergency room after receiving a call. The older girl was lethargic,

unresponsive, and did not speak. Her eyes were dilated, and she could not move her arms or

walk. Canter said that she had allowed the girl to spend the night with her friend and that her

friend must have given the girl “something.”

Both children were removed from Canter’s home under an emergency removal order and

placed in foster care. The district court upheld the emergency removal order and granted custody

of the girls to the Department. Canter admitted that she had given the older girl cold showers to

calm her, that she had beaten her with a belt on a daily basis to “make her be good,” and that she

had given the girl Elavil pills to calm her.

Canter pled guilty to one count of felony abuse and neglect under Code § 18.2-371.1(A)

and one count of felony cruelty and injury to children under Code § 40.1-103 on June 12, 2000.

The circuit court sentenced Canter to two years in the penitentiary on each count and suspended

one year and five months of the first sentence and suspended the entire second two-year

sentence, imposing certain conditions. The Department issued a “Founded-Level 1” disposition

against Canter for physical abuse, noting that Canter had admitted to physical, mental, and

medical abuse and that Canter had been found guilty of the above-referenced felony charges.

The Department placed her two minor children in various foster homes. When released from

jail, Canter visited the children on December 8, 2000 and January 19, 2001. However, in

February 2001, Canter admitted that she had been using alcohol, marijuana, Ecstasy, and Lortab.

The circuit court revoked her sentence for violating her probation. She was incarcerated until

March 17, 2001.

While Canter was in jail, the district court approved placement of the girls with relatives

in North Carolina in separate households, where they still had close contact with each other.

-3- Prior to that time, the children had been together in three foster care placements. When Canter

visited with the children after she was released from jail, they had adverse reactions to her.

When Canter’s relatives found it difficult to make the children available for visitation with

Canter, the children were returned to Virginia for foster care placement. The girls eventually

were placed in two different foster care homes and have maintained close, regular contact.

In July 2001, the Department filed a new foster care plan with the goal of returning the

children to Canter’s home. The district court approved that plan, upon condition that Canter

maintain appropriate housing, obtain employment and means of support, participate in parenting

classes and exhibit appropriate parenting, and participate in counseling for anger and substance

abuse issues.

The evidence proved Canter did not maintain stable housing. Although Canter completed

parenting classes and continued with a women’s treatment group, the evidence proved she failed

to improve her ability to parent the children. Canter obtained employment in August 2001 and

worked through December 2001, but did not again obtain employment until April 2002, after the

termination petitions were filed.

The Department changed its goal of returning the children to Canter to the goal of

adoption. It then filed new foster care plans and petitions to terminate Canter’s parental rights.

The district court granted those petitions, giving custody of the children to the Department and

granting permission to place the children for adoption.

On Canter’s appeal to the circuit court, the older girl’s foster parent testified that the child

initially kicked, stomped, hit, and bit. She refused to obey, and she had very little verbal ability.

The girl slowly progressed, but, after each visit with Canter, she reverted to disruptive and

aggressive behaviors and was visibly upset. After the Department stopped the visitation, the

-4- girl’s behavior improved. The foster parent testified that the girl’s verbal skills have improved

and that she rarely needed to use sign language.

The younger girl’s foster parent testified that the girl was very well adjusted in the home,

except after visitation with Canter when she became upset. Once visitations with Canter

stopped, the child’s behavior improved. The child is in kindergarten and progressing

satisfactorily at grade level.

Dr. Timothy A. Urbin, a licensed clinical psychologist, testified that the older child

suffers from “very severe cognitive impairments, difficulty with thinking with the left

hemisphere [of her brain] associated with verbal processing much more impaired than the right.”

He recommended that she be in a permanent, stable environment to maximize her functioning

level. He opined that the child’s exposure to Elavil probably was “a precipitating event for some

significant brain damage.” He opined that the general shock effects and reduced blood supply to

the brain from an overdose of Elavil “could certainly produce” significant permanent damage to

the brain as seen in this case. Urbin opined that the child’s learning ability will be severely

impaired as a result of exposure to Elavil.

Other evidence proved that most of the older girl’s behavioral problems resolved in four

to five months; however, her speech problems did not resolve. As a result, she began to learn

sign language, which helped her communicate. The counselors and social workers

recommended that the children be placed in homes that could provide permanency and

consistency.

A licensed clinical psychologist testified that Canter appeared “somewhat intellectually

limited and she shared . . . that she did have a long history of being in special education.” Canter

revealed her history of drug abuse and her own abusive childhood. She testified that Canter

admitted that she committed abusive acts against the girl. She opined that Canter’s limited

-5- intellectual and psychological functioning would have prevented her from being able to meet the

needs of the older child.

Canter testified that she had just moved to a new residence and had lived there for the

past two months. She has two other minor children, a twenty-month boy and four-month girl,

each of whom has a different father. Canter testified that she worked for three months at one job

before quitting. After the petitions to terminate her parental rights were served upon her, she

began another job but quit due to her pregnancy and her mother’s illness. She denied abusing

her children.

The trial court granted the petition to terminate Canter’s residual parental rights. In its

final order, the trial court made specific findings of fact and concluded that the Department

established by clear and convincing evidence that termination of Canter’s parental rights was

appropriate under Code § 16.1-283(E)(iii) and § 16.1-283(C)(2) and that termination was in the

best interests of both children.

Analysis

Canter contends the trial court was precluded from terminating her parental rights under

Code § 16.1-283(E)(iii) because the Department elected to pursue termination of her parental

rights solely under Code § 16.1-283(C)(2). Canter argues that the burden of proof under Code

§ 16.1-283(C)(2) is substantially different from the burden of proof under Code

§ 16.1-283(E)(iii), and, therefore, due process required the Department to proceed only upon that

portion of the statute elected.

Canter never made this election of remedies argument to the trial court. Accordingly,

Rule 5A:18 bars our consideration of this argument on appeal. “The Court of Appeals will not

consider an argument on appeal which was not presented to the trial court.” Ohree v.

Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).

-6- Code § 16.1-283(E)(iii)

Canter argues that the trial court erred in terminating her rights under Code

§ 16.1-283(E)(iii) and in finding that such termination was in the best interests of the children.

“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, 13 Va. App. at 128, 409 S.E.2d at 463 (citations omitted). Recognizing that “‘[t]he

termination of [residual] parental rights is a grave, drastic and irreversible action,’” Helen W. v.

Fairfax County Dep’t of Human Dev., 12 Va. App. 877, 883, 407 S.E.2d 25, 28-29 (1991)

(citation omitted), we, nevertheless, presume the trial court has “thoroughly weighed all the

evidence [and] considered the statutory requirements.’” Logan, 13 Va. App. at 128, 409 S.E.2d

at 463 (citation omitted).

Code § 16.1-283(E)(iii) provides as follows:

The residual rights of a parent or parents of a child who is in the custody of a local board or licensed child-placing agency may be terminated by the court if the court finds, based upon clear and convincing evidence, that it is in the best interests of the child and that . . . the parent has been convicted of an offense under the laws of this Commonwealth . . . that constitutes felony assault resulting in serious bodily injury or felony bodily wounding resulting in serious bodily injury or felony sexual assault, if the victim of the offense was a child of the parent or a child with whom the parent resided at the time of such offense . . . .

Canter pled guilty to felony charges under Code §§ 18.2-371.1 and 40-103. She had

earlier confessed that she beat the older girl with a belt on a daily basis, gave her cold showers to

make her behave, and gave her Elavil to calm her. The underlying factual basis for those

convictions clearly constituted felony assault resulting in serious bodily injury under Code

§ 16.1-283(E)(iii). See Brown v. Spotsylvania Dept. of Social Servs., 43 Va. App. 205, 214, 597

S.E.2d 214, 218 (2004) (“‘[F]elony assault’ . . . means any crime which results in serious bodily -7- injury to the child.”). In addition, the trial court found that the Department presented clear and

convincing evidence that termination of Canter’s parental rights was in the best interests of the

children. The voluminous evidence contained in the record, including the testimony of the

numerous lay and expert witnesses and exhibits admitted into evidence, amply supports that

ruling. Accordingly, we will not disturb it on appeal.

Canter’s argument that the trial court erred in terminating her parental rights to the

younger girl because the evidence relating to the felony assault pertained solely to the older girl

is without merit. By its express language, Code § 16.1-283(E) does not limit the authority of the

trial court to terminate parental rights only to children who are the direct victims of the parent’s

felonious assault. The express language of the statute permits the termination of parental rights

of other children who would be endangered where a parent has feloniously assaulted one of his

or her children. The obvious purpose of the statute is to allow the court to terminate a parent’s

parental rights when the parent’s conduct poses a serious endangerment to a child’s well-being

without requiring that the court wait until the child is harmed before terminating the parent’s

rights.

In this instance, the trial court ruled that the Department established a prima facie case

under the statute as to both children when it proved that Canter was convicted of felony child

abuse and felony cruelty and injury to one of her children. Relevant information regarding the

older child was presented at the hearing and contained in other parts of the record. The trial

court found by “clear and convincing evidence . . . that the termination of [Canter’s] rights in

both [children] is appropriate under Va. Code § 16.1-283(E)(iii) and said termination is in the

best interest of both children.” Those findings are supported by credible evidence.

-8- Code § 16.1-283(C)(2)

Canter also argues that the trial court erred in terminating her parental rights under Code

§ 16.1-283(C)(2). Because we hold that the trial court’s termination of Canter’s parental rights

under Code § 16.1-283(E)(iii) was amply supported by the record, we need not address this

argument.

Code § 16.1-283 provides for the termination of residual parental rights under carefully

defined circumstances. Here, the trial court concluded that the evidence warranted termination

of Canter’s residual parental rights to the children on alternative grounds, i.e., under subsections

(E)(iii) and (C)(2) of Code § 16.1-283. Where a trial court’s judgment is made on alternative

grounds, we need only consider whether any one of the alternatives is sufficient to sustain the

judgment of the trial court and, if we so find, need not address the other grounds. See Boone v.

C. Arthur Weaver Co., 235 Va. 157, 161, 365 S.E.2d 764, 766 (1988).

Accordingly, for the reasons set forth herein, we affirm the trial court’s decision

terminating Canter’s residual parental rights to both children.

Affirmed.

-9-