COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Fitzpatrick and Annunziata Argued at Alexandria, Virginia
BONNIE PRUDEN MEMORANDUM OPINION * BY v. Record No. 0949-96-4 JUDGE ROSEMARIE ANNUNZIATA JANUARY 7, 1997 FAIRFAX COUNTY DEPARTMENT OF HUMAN DEVELOPMENT, ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY F. Bruce Bach, Judge Dorathea J. Peters (Peters & Mullins, on brief), for appellant.
Dennis R. Bates, Senior Assistant County Attorney (David P. Bobzien, County Attorney; Robert Lyndon Howell, Deputy County Attorney, on brief), for appellee Fairfax County Department of Human Development.
Wayne D. Berthelsen (Freeman & Berthelsen, on brief), Guardian ad litem for appellee Russell Pruden.
Bonnie Pruden (mother) appeals from an order of the circuit
court terminating her residual parental rights pursuant to Code
§ 16.1-283(B). We conclude that the circuit court's findings are
not supported by clear and convincing evidence and, therefore,
reverse its decision and remand the case.
I.
The mother in this case is an alcoholic. She continued to
drink on a daily basis through the early weeks of her pregnancy,
until she realized she was pregnant. In March 1990, mother gave * Pursuant to Code § 17-116.010 this opinion is not designated for publication. birth to a son (child). Her drinking resumed in August 1990 and
continued until July 1991, when she entered a detoxification
program. After relapsing, mother entered the program twice more
during the Fall of 1991. During that time, mother was in an
abusive relationship with her husband which exposed the child to
domestic violence.
In December 1991, the Fairfax County Department of Human
Development (county), removed the child from his parents and
placed him in foster care, citing continuing domestic violence
and substance abuse by the child's parents as its reasons. At
that time, the Fairfax County J&DR Court found the child had been
"abused and neglected." The county prepared a foster care
service plan, the goal of which was to return the child to his
parents by December 1993. The plan directed the child's parents
to cooperate with alcohol and drug services and mental health
evaluations. In June 1992, mother and her husband separated. Mother initially sought treatment from the Fairfax County
Alcohol and Drug Services, and, in January 1992, she entered a
two-week, residential treatment program. She subsequently
entered an eight-week treatment program and, following that,
entered a treatment program at the Northwest Mental Health Center
(Northwest). Mother received individual counselling at Northwest
from March 1992 through August 1992 and participated in group
therapy from June 1992 until March 1993. During that period,
there were some signs that mother had relapsed; however, none of
- 2 - mother's urine screens evidenced alcohol use. The record shows
mother was not always amenable to being monitored.
By April 1993, mother was asked to leave the Northwest
therapy group because she had "gained maximum benefit" from it.
Her attitude toward monitoring was not consistent with the
program objectives, and her presence was viewed as
disadvantageous to other members.
Nonetheless, by June 1993, the county was sufficiently
satisfied with mother's progress to return physical custody of
the child to her. Legal custody was restored in December 1993.
Thereafter, except for sporadic Alcoholic's Anonymous (AA)
meetings, mother did not continue treatment. In March 1994, mother relapsed. On her third day of
drinking, mother left the child alone while she went to the store
to purchase more beer. She was intoxicated when Child Protective
Services arrived soon after her return.
The county removed the child from mother's care, and, on
April 4, 1994, the J&DR court again found that the child had been
"abused and neglected" by mother. By May 27, 1994, the county
had devised a new foster care service plan, this time with the
goal of adoption. Following a hearing on December 22, 1994, the
J&DR court terminated parental rights of both mother and the
child's father. Mother has had no contact with the child since
that time. Both parents appealed, and de novo hearings were
conducted in the circuit court in May 1995.
- 3 - In May 1994, mother began treatment at the Recovery Women's
Center, in which she continued to participate at the time of the
circuit court hearing. At the hearing, mother admitted
responsibility for her alcoholism and stated that she had not
taken a drink since her March 1994 relapse. Likewise, Kelley
Traver, the county's foster care social worker assigned to the
case, and mother's counsellors at the Recovery Women's Center,
Jean Larkin, Roberta Severo and Judith Leanes, all testified that
mother had fully complied with the treatment program and that
mother had shown no further sign of relapse. Leanes further testified concerning the strengths and
weakness she perceived in mother: What I have notice[d] about [mother], is [that she] has remained abstinent for more than a year. [She] has consistently attended all required meetings, she has been incredibly compliant, she didn't drink during some real stressful periods in her life, she didn't have a relapse at that point, and I think that that's a strength.
* * * * * * *
[She] is also very willing to listen to feedback, which was really difficult for her to do in the beginning. She would be very angry and defensive, that doesn't happen anymore. If she does get angry, she goes away, thinks about it, and she comes back, but she doesn't drink over it.
[Mother], also has gone to the Women's Center on her own, and taken the Strom inventory test, to find out about career options and choices that are available to her, and anything that has been suggested to her, she tries whole heartedly. If she has questions,
- 4 - if she has problems, if she feels like she doesn't understand, she has the ability to ask. She also has the ability to admit when she's wrong, and I think that that's a really good strength.
[Her] limitations are that [she] is an alcoholic, and [she] may someday drink again, [she] may not someday drink again. A limitation for [mother] might be her thoughts where she gets really kind of compulsive like, or obsessive, where she needs to kind of go back and check, and make sure that she has everything done, and that can be a limitation. She always needs to double check herself.
Leanes further testified that mother's short term goals included
completing treatment at the Recovery Women's Center and that her
long term goals included schooling and living with her son.
Mother was expected to complete her treatment at the Recovery
Women's Center in July 1995.
Pam Wright, a mental health therapist for Arlington County,
testified as an expert in substance abuse and as mother's sponsor
at AA. Wright testified that mother had attended AA meetings at
least five or six times per week for the preceding twelve months
and participated in service work for the group. Wright described
how she and mother worked to create a plan to keep mother sober
and that mother had relied on her and abided by her suggestions
for successfully implementing the plan. Specifically, Wright
testified as follows: [Mother] is working very hard at creating a new life for herself. She is reexamining what kind of work she wants to do, what are her professional strengths, what kind of
- 5 - future she would like to have. She has done vocational testing. She has tak[en] the Strom Interest Inventory. She has looked at career planning. She has done a lot of things.
[Mother], emotionally, is much more stable. When she feels, -- I guess the thing that I would say most about [mother] . . . is when she feels jeopardized, she is no longer afraid to ask for help, and that's a very important part of recovery, is to have that humility, to say I need help.
Nancy Colletta, a clinical psychologist who specializes with
children, testified as an expert witness for the county. Dr.
Colletta had evaluated the child in July 1994 and, based on her
evaluation, stated that the child evidenced characteristics of
Fetal Alcohol Syndrome (FAS), a condition which would have long
term consequences. She also observed emotional problems in the
child, including distrust of adults, fear of abandonment, anger
at both his mother and foster mother because of his feelings of
abandonment, and preoccupation with family violence. She
testified that the child was delayed in both language and gross
motor skills.
Because of the child's special needs, Dr. Colletta believed
that the child's provider would have to provide a stable,
predictable environment with clear limits and constant
discipline. Dr. Colletta evaluated mother for two hours, during
which time she was the first person to inform mother that the
child suffered from FAS. Dr. Colletta testified that mother
- 6 - denied responsibility for the child's problems. Following her
evaluation of mother, Dr. Colletta observed mother interact with
the child. At the hearing, Dr. Colletta expressed concern about
mother's ability to meet the child's special needs. She was
especially concerned that mother did not recognize the child's
problems. Dr. Colletta recommended that the child be placed in a
permanent home.
At the close of the evidence, the court deferred decision,
stating that because of [mother's] efforts in trying to rehabilitate herself, and become a sober mother for this child, the Court wants, and hopefully will find that there is additional evidence that she will remain sober in the future. . . . [Therefore,] it is my intention [albeit reluctantly] to continue this case for ultimate decision for approximately four months. During which time, hopefully, Mrs. Pruden will at least complete the treatment that she is in at this time, recognizing as most of these professionals suggest, that alcoholics remain in treatment the rest of their life.
I would ask counsel to prepare an appropriate order, and let the record reflect, as well as the order, that if [mother] comes through the next four months without any recognizable problems, the Court, this Judge at least, would recommend that the petition be dismissed, and the child returned to you, after an arrangement of reasonable visitation.
(Emphasis added.)
The matter was continued in the circuit court, ultimately
until December 19, 1995, nearly seven months later, when it was
- 7 - taken up by a different judge. At that point, mother had not
seen her child in nearly one year. Following the hearing, the
court ordered the termination of both parents' parental rights. 1
The circuit court found that the county had established a
prima facie case pursuant to Code § 16.1-283(B)(2)(b), by proving
that mother's proper parental ability had been seriously impaired
by her alcoholism and that, without good cause, she had failed to
respond to or follow through with recommended and available
treatment which could have improved her capacity for adequate
parental functioning. We read the court's letter opinion to make
an alternative finding as well: that, even in the absence of prima facie evidence established pursuant to Code
§ 16.1-283(B)(2)(b), the county had met its burden, pursuant to
Code § 16.1-283(B)(2), of proving that it was "not reasonably
likely that the conditions which resulted in . . . neglect or
abuse [could] be substantially corrected or eliminated so as to
allow the child's safe return . . . within a reasonable period of 2 time." We conclude that clear and convincing evidence fails to
support the court's findings. 1 The child's father did not appeal. 2 The court concluded that mother "has not demonstrated her ability to substantially correct within a reasonable period of time the conditions that led to [the child's] neglect," having found (1) mother had a long history of relapsing alcohol problems; (2) as recently as September 1995, mother displayed "relapse symptoms"; (3) mother's condition is extremely fragile, and although she has maintained sobriety for a few months, she has done so without the burden of caring for a severely disadvantaged and troubled child; and (4) mother would be unable
- 8 - II.
An order terminating parental rights permanently severs the
parent-child relationship, rendering each a "'legal stranger'" to
the other. E.g., Edwards v. County of Arlington, 5 Va. App. 294,
305, 361 S.E.2d 644, 650 (1987) (quoting Shank v. Department of
Social Services, 217 Va. 506, 509, 230 S.E.2d 454, 457 (1976)).
It is a "grave, drastic" action, to be accomplished in "rare"
circumstances, id. at 305-06, 361 S.E.2d at 650 (quoting Lowe v. Department of Public Welfare, 231 Va. 277, 280, 343 S.E.2d 70, 72
(1986); Weaver v. Roanoke Department of Human Resources, 220 Va.
921, 926, 265 S.E.2d 692, 695 (1980)), and in contemplation of
"'the use, where possible, of alternatives less drastic . . . .'"
Id. at 312, 361 S.E.2d at 654 (quoting Knox v. Lynchburg
Division of Social Services, 223 Va. 213, 223, 288 S.E.2d 399,
404 (1982)). In Edwards, we addressed alternatives, including
"[t]hose remedies, which merely effect `a transitory change in
the child's custodial status . . . without affecting other
parental rights,' [which] are specifically `designed for the case
of a parent who shows extenuating circumstances and demonstrates
[her] potential for rehabilitation as a fit parent.'" 5 Va. App.
at 312-14, 361 S.E.2d at 654-55 (quoting Shank, 217 Va. at 509, 230 S.E.2d at 456); see also Code § 16.1-278.2. We also
addressed, as an alternative, the use of the trial court's
discretion to continue a case on its docket "in order to allow (..continued) to shoulder such a burden without substantial risk of relapse.
- 9 - further services to be rendered to a parent in the hope that
termination of the parent's residual parental rights would not be
necessary." Id. at 314, 361 S.E.2d at 655.
While the child's best interest is the "paramount concern,"
e.g., Wright v. Alexandria Div. of Social Servs., 16 Va. App.
821, 827, 433 S.E.2d 500, 503 (1993), cert. denied, 115 S. Ct.
651 (1994), the rights and interests of the parent must also be
protected. Id.; Radar v. Montgomery County, 5 Va. App. 523, 526-28, 365 S.E.2d 234, 235-37 (1988). A balance of these
interests is struck by utilizing the procedural safeguards of
Code § 16.1-283. Edwards, 5 Va. App. at 306, 361 S.E.2d at 650.
Before residual parental rights can be terminated under Code
§ 16.1-283(B), the party seeking termination must prove by clear
and convincing evidence that (1) termination of parental rights
"is in the best interests of the child"; (2) the neglect or abuse
suffered by the child presents "a serious and substantial threat
to his life, health or development" and (3) it is "not reasonably
likely that the conditions which resulted in such neglect or
abuse can be substantially corrected or eliminated so as to allow
the child's safe return to his parent . . . within a reasonable
period of time."
The third factor may be established by a prima facie showing that "the parent . . . [has] habitually abused or [is] addicted
to intoxicating liquors . . . to the extent that proper parental
ability has been seriously impaired and the parent, without good
- 10 - cause, has not responded to or followed through with recommended
and available treatment which could have improved the capacity
for adequate parental functioning." Code § 16.1-283(B)(2)(b)
(emphasis added). Where the prima facie case is overcome, the
party moving for termination is put to the burden of proving the
factors listed in Code § 16.1-283(B)(2). Banes v. Department of
Social Servs., 1 Va. App. 463, 466, 339 S.E.2d 902, 904 (1986)
(prima facie case overcome where evidence shows parent not
offered or provided services by the social agency designed to
remedy the conditions leading to the foster care placement); Harris v. Lynchburg Div. Soc. Serv., 223 Va. 235, 243, 288 S.E.2d
410, 415 (1982) (same).
In the present case, the record makes clear that mother's
drinking was the relevant condition which resulted in the child's
neglect and abuse and which the county had to prove, by clear and
convincing evidence, could not be substantially corrected or
eliminated so as to allow the child's safe return to his mother
within a reasonable period of time. Although the child was
removed initially due to his exposure to domestic violence as
well as substance abuse by his parents, mother separated from her
husband in June 1992, and the record reveals nothing to indicate
that the child's further exposure to domestic violence was a
concern. Furthermore, the record reveals nothing to indicate
that mother's parenting skills, post-removal visitation record,
employment status, or housing conditions figured into the
- 11 - county's decision to remove the child and seek termination of
mother's parental rights, except to the extent that mother's
drinking affected those factors. Indeed, Kelley Traver, the
county's case worker assigned to the matter, testified that the
county refused to allow mother to take the child to parenting
classes, noting that the county's concern was mother's drinking,
not her parenting skills. Moreover, the foster care service plan
required mother to follow any and all recommended substance abuse
treatment and refrain from any use of alcohol. When mother asked
Traver what she should be doing following the child's removal,
Traver told her she needed to comply with treatment for her
alcoholism. Although it can be reasonably inferred that mother's
drinking impaired her parenting ability, the county clearly
anticipated that cessation of mother's drinking would cure her
impaired parenting. Had the county considered otherwise, it
would have been required to provide services to enable mother to
remedy her impairment. See, e.g., Banes, 1 Va. App. at 466, 339
S.E.2d at 904.
No evidence supports the circuit court's finding that the
county established a prima facie case pursuant to Code § 16.1-283(B)(2)(b). Even assuming the evidence supports a
finding that mother's parenting ability was seriously impaired by
her alcoholism, the record is devoid of evidence that she failed
to respond or follow through with recommended and available
treatment which could have improved her capacity for adequate
- 12 - parental functioning. The evidence that mother fully complied
with and completed her treatment program subsequent to the
child's removal is undisputed. The evidence shows that mother
responded to and followed through with treatment programs prior
to her relapse as well. Furthermore, there is no evidence that
mother took a drink subsequent to her March 1994 relapse, nearly
twenty-one months prior to the end of the hearing.
Moreover, clear and convincing evidence does not support the
circuit court's alternative finding that, even in the absence of
prima facie evidence established pursuant to Code
§ 16.1-283(B)(2)(b), the county met its burden, pursuant to Code
§ 16.1-283(B)(2), of proving that it was "not reasonably likely
that the conditions which resulted in . . . neglect or abuse
[could] be substantially corrected or eliminated so as to allow
the child's safe return . . . within a reasonable period of
time." To the contrary, the weight of the evidence supports a
finding that mother had substantially corrected or eliminated the
condition, her drinking, which resulted in the child's abuse and
neglect.
There is no evidence that mother took a drink during the
twenty-one months between her relapse and the circuit court's
ruling. We disagree with the court's characterization of this
period as a "few" months of sobriety. Furthermore, the evidence
is undisputed that mother fully complied with her treatment and
everything that the county required of her during that time. In
- 13 - addition to her treatment at Recovery Women's Center, mother
attended AA meetings nearly every day during those twenty-one
months. Mother admits that she is an alcoholic and will be for
life. However, the evidence shows that mother is not likely to
relapse again. Wright opined that relapse was very unlikely even
with the stress of caring for the child and mother's pending
divorce. Wright testified that mother had been sober since the
May hearing and that she knew how to avoid relapse when a relapse
warning sign presented itself. Since the initial hearings in May
1995, mother completed her treatment at Recovery Women's Center,
began individual therapy, continued to attend AA meetings on an
almost daily basis and remained sober. Furthermore, the circuit court continued the case following
the first two days of hearings and established mother's continued
sobriety for the proceeding four months and her completion of
treatment at the Recovery Women's Center as conditions for
dismissing the petition. Such a ruling, in effect, established
the "reasonable period" for mother to substantially correct the
condition which resulted in the finding of abuse and neglect.
All the evidence shows that mother fulfilled every condition
upon which the circuit court premised its "recommendation" that
the petition be dismissed within the period specified by the
court. Moreover, there was no indication of relapse during that
time. The circuit court's reliance on the fact that mother
showed "relapse symptoms" as late as September 1995 is misplaced.
- 14 - The hearing testimony clearly shows that a "relapse warning
sign" does not indicate that relapse will occur. Rather, the
testimony shows that a "relapse warning sign" is a signal to a
recovering alcoholic to be aware of a condition or circumstance
that had been an impetus to that person's drinking. By
identifying the sign, a recovering alcoholic is able to take
preventative measures to avoid relapse. The evidence shows that
identifying relapse warning signs makes relapse less likely to
occur. We also find no support for the trial court's finding that
mother's condition is extremely fragile and that she would be
unable to shoulder the burden of raising the child without
substantial risk of relapse. To the contrary, the testimony of
Judith Leanes, mother's counselor at the Recovery Women's Center
at the time of the initial hearing, and Pam Wright, mother's AA
sponsor, depicts mother as stable, confident and able to
understand when she needs help and from where to get it. Leanes
and Wright testified that mother had accepted responsibility for
her situation and had set goals for improving it.
Finally, we find the testimony of the county's expert
witness, Dr. Colletta, unpersuasive on the dispositive issue in
this case. Initially, we note that Dr. Colletta's opinion
regarding mother's inability to meet the child's needs was based
on one personal interview which lasted two hours. She based her
opinion, in part, on mother's reaction to her findings with
- 15 - respect to the child. In context, however, those reactions came
after Dr. Colletta informed mother, for the first time, that her
child suffered from FAS. Such information, it would later be
revealed, was incorrect.
Irrespective of the basis for Dr. Colletta's opinion, it is
clear that opinion bears no relationship to mother's drinking.
Dr. Colletta's focus was on the child's "special needs," and she
was concerned that mother could not meet those needs, regardless
of her success in treatment. However, the issue is not mother's
ability to parent her child notwithstanding her alcoholism. If
it were, the county failed to offer or provide services to mother
to enable her to remedy that situation and, therefore, the
petition for termination would have to be denied. See, e.g.,
Banes, 1 Va. App. at 466, 339 S.E.2d at 904. Rather, the issue
is mother's ability to correct the condition, her drinking, which
led to the child's neglect. 3
3 Furthermore, to the extent mother's relationship with the child had deteriorated while the matter was on appeal in the circuit court, as suggested by Dr. Colletta, the result was one created, in good part, by the denial of mother's visitation with the child during that twelve month period. The quality of mother's bonding with the child was not the ground for removing the child at the initiation of the action, and mother exercised visitation with the child throughout the period she was receiving treatment. Visitation was terminated upon the grant of the petition to terminate parental rights by the J&DR court. The circuit court likewise denied mother's motion for visitation pending appeal of the termination decision. The attenuation of the parent-child bond under these circumstances is not surprising; however, consideration of this "system-created" new circumstance in deciding to terminate parental rights appears, at minimum, unjust.
- 16 - For the reasons stated, the order of the circuit court is
reversed. The case is remanded, therefore, to the circuit court
for further proceedings not inconsistent with this opinion.
Reversed and remanded.
- 17 - Fitzpatrick, J., dissenting.
I respectfully dissent and would hold that the evidence,
when considered in the light most favorable to the prevailing
party, is sufficient to meet the requirement of Code
§ 16.1-283(B)(2) that it was "not reasonably likely that the
conditions which resulted in . . . neglect or abuse [could] be
substantially corrected or eliminated so as to allow the child's
safe return . . . within a reasonable period of time." This is the classic case of a child who came into foster
care as a toddler because of parental neglect or abuse, and
remains so, six years later. The evidence established that while
the mother clearly has made progress in attempting to remedy her
dependency on alcohol, it is still uncertain whether she has been
successful. After an earlier period of sobriety, the Department
attempted a return of the child to her. She relapsed, put the
child at risk, and a removal was again required. The trial court
was not required to accept the testimony of mother's expert that
relapse despite "stress" was unlikely.
In considering all of the evidence, including the demeanor
and credibility of the witnesses, the trial court specifically
weighed the history of relapse and the recent display of "relapse
symptoms." It observed that the mother was "extremely fragile on
the date of the hearing," that she had "maintained sobriety . . .
without the burden of caring" for her child who has special
needs, and lastly, that it was in the child's best interest that
- 18 - the termination of parental rights be accomplished completely and
expediently. I would hold that this decision was not clearly
wrong or without evidence to support it. For these reasons, I
would affirm the trial court.
- 19 -