Carrie S. Barnhill v. City of VA Beach, ex rel. etc

• Court: Court of Appeals of Virginia
• Decided: June 25, 1996
• Docket: 1437951
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Coleman and Bray Argued at Norfolk, Virginia

CARRIE S. BARNHILL MEMORANDUM OPINION * BY v. Record No. 1437-95-1 CHIEF JUDGE NORMAN K. MOON JUNE 25, 1996 CITY OF VIRGINIA BEACH, ex rel., ETC.

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Kenneth N. Whitehurst, Jr., Judge Gregory Robert Wright for appellant.

Teresa N. Hammons, Assistant City Attorney (Leslie L. Lilley, City Attorney, on brief), for appellee.

Carrie S. Barnhill appeals from the trial court's order

terminating her parental rights with respect to her four

children. Mrs. Barnhill contends that the trial court erred in

terminating her rights because the Virginia Beach Department of

Social Services did not properly document that termination was in

the best interests of the children prior to filing petitions for

termination, and further erred in finding by clear and convincing

evidence that the conditions which resulted in abuse of the

children could not be substantially corrected within a reasonable

time. We affirm the judgment of the trial court.

Mrs. Barnhill has four children, Jeremia Fritcher and

Samantha, Christopher, and Lorissa Barnhill. At the time of

trial, Jeremia was twelve years of age, Christopher was eight, * Pursuant to Code § 17-116.010 this opinion is not designated for publication. Samantha was seven, and Lorissa was four. Randy Barnhill is the

biological father of the three youngest children.

The Department of Social Services first became involved with

the Barnhills in 1988, when it received information that the

children were found in the family car without parental

supervision. The social worker who investigated the case

interviewed Jeremia, then age six, and determined that he had

been left alone to supervise his younger siblings on other

occasions. In November of 1988, the department established a

"founded case" of physical neglect due to lack of supervision,

and provided supportive counseling and other services to Mrs.

Barnhill. Mrs. Barnhill agreed that she would not leave the

children alone again. In 1993, the Department of Social Services again contacted

the Barnhills. As a result of that contact, the department filed

petitions for emergency removal of the children on August 5,

1993. The circumstances leading to the petitions included

unsanitary and unsafe conditions in the home, Mrs. Barnhill's

failure to seek medical attention for Samantha's broken arm until

fifteen hours after the injury occurred, Mrs. Barnhill cursing

and screaming at the children, Mrs. Barnhill slapping Jeremia in

the face, and Mrs. Barnhill leaving the children on two occasions

with an acquaintance who had been convicted of sexual battery of

a child. The court granted the petitions for emergency removal,

and the children were removed by a department social worker,

- 2 - Sally Carroll, on August 4, 1993. Ms. Carroll acknowledged that

at the time she removed the children, the house was very clean.

However, during that same visit Mrs. Barnhill refused to agree

not to leave the children in the care of the individual convicted

of sexual battery. This was the primary reason for removal of

the children. Mrs. Barnhill has also denied abusing or

neglecting the children either emotionally or physically.

After the children were removed from the home, the trial

court entered a "supplemental order" requiring the Barnhills to

make certain efforts to resolve the problems in their family, and

enjoining them from leaving the children in the care of anyone

convicted of assault or child abuse. Mrs. Barnhill contends that

she undertook the affirmative steps required by this order, and

she agreed that she would not leave her children in the care of

the aforementioned individual. The initial foster care plans for

the children established the goal of returning the children to

their parents, and set a target date of February 1994. The children were not returned by the target date, for two

reasons. First, the department social workers believed that Mrs.

Barnhill had not "taken responsibility" for the conditions that

led to removal of the children. Second, beginning in December

1993 and continuing through March 1994, the three oldest children

told their foster parents and counselors about sexual abuse by

both Mr. and Mrs. Barnhill. In December 1994, the Barnhills were

acquitted of criminal charges of sexual abuse against Christopher

- 3 - and Samantha Barnhill.

The court suspended the Barnhills' supervised visitation

with the children on March 16, 1994. On July 19, 1994, the

department filed new foster care plans, subsequently approved by

the court, that documented termination of parental rights as

being in the best interests of the children. On December 22,

1994, the department filed a petition to terminate the Barnhills'

parental rights over Christopher, Samantha, and Lorissa. On

December 28, the department filed a similar petition for Jeremia.

After trial on January 19, 1995, the juvenile and domestic

relations court granted the petitions. Both parents appealed to

circuit court, and Randy Barnhill then elected not to pursue his

appeal. After trial on March 30 and 31, 1995, the circuit court

terminated Mrs. Barnhill's parental rights pursuant to Code

§ 16.1-283(B). At trial, Jeremia testified that he had seen his mother

naked in the house on more than one occasion, and that the

children would sleep in the bed with their mother when Mr.

Barnhill was at sea with the Navy. He also stated that his

mother sometimes had him pop pimples on her back, butt and

thighs.

At the time of trial, Jeremia was living at the Boys' Home

in Covington. Jeremia's therapist at the Boys' Home testified

that since the January hearing where parental rights were

terminated, Jeremia's behavior and school performance had

- 4 - improved. The therapist attributed these changes to Jeremia's

increased sense of safety and security once he felt he would "no

longer have to deal with the court issue, [and] not have to deal

with the issue of Mom . . . ."

Christopher's foster mother, therapist and a department

social worker testified pursuant to Code § 63.1-248.13:2

concerning Christopher's allegations of sexual abuse. According

to these witnesses, Christopher stated that on more than one

occasion, Mr. and Mrs. Barnhill and the children participated in

group sexual activity. The children had to watch their parents

"make love," the parents would put their mouths on the children's

penis or vagina, and the children were forced to place their

mouths on their parents' genital areas. He said that his father

put his penis in his butt and tried to do the same to Samantha. Christopher also described an incident of group sexual

activity at the home of a male babysitter. Christopher testified

that during this incident, his parents and siblings, with the

exception of Lorissa, had sexual contact with each other and also

with a rabbit and a dog. Christopher said that he had to lick

the "private area" of both of these animals. He also described

an incident in which his parents disemboweled a pet rabbit to

demonstrate what would happen to the children "if they told

anything that happened."

Christopher's therapist testified that Christopher's

behavior had regressed following visits with his mother. She

- 5 - described Christopher as a traumatized child who disliked and

mistrusted his mother, and who would not feel safe and secure

until he knew that he would not have to live with her again.

A department social worker, her foster mother, and her

therapist testified concerning Samantha's recollections. The

foster mother and therapist reported Samantha's account of Mrs.

Barnhill rubbing her on her "potty," near her vaginal area, with

a hairbrush. The social worker testified that Samantha drew a

picture of herself and her mother, with an "X" marking the spot

on or near her vaginal area where her mother touched her. The

therapist described Samantha as a guarded and emotionally

immature child who has difficulty controlling her bowels and

bladder. The latter problem became more pronounced following

family therapy sessions with Samantha's parents. Samantha told

the therapist that she did not want to be alone with her parents

because she did not feel safe. Lorissa Barnhill was only two years old when she was removed

from the Barnhill home. There is no evidence that she was

sexually abused, although Christopher stated that she was present

during the sessions of group sex.

Mrs. Barnhill testified in her own behalf. She

categorically denied any physical or sexual abuse of the

children. She testified concerning her efforts to comply with

all of the court-ordered conditions on her behavior, including

use of appropriate caretakers for the children, obtaining

- 6 - counseling, and maintaining her home in safe and sanitary

condition. She reported that she was separated from her husband,

producing a copy of a separation agreement to verify this claim,

and testified that she would not allow Mr. Barnhill to see the

children if they were returned to her. She presented evidence

from neighbors, as well as from a family that stayed with the

Barnhills during the summer of 1992, that they saw no evidence of

abuse in the Barnhill household. She described her successful

completion of training as a shipfitter, and her current

employment in that occupation at a local shipyard. She testified

that she loved her children and would not do anything to hurt

them if they were returned to her. On review of the trial court's termination of parental

rights, the evidence is viewed in the light most favorable to the

prevailing party below, and the trial court is presumed to have

weighed all of the evidence, considered the statutory

requirements, and made its determination based on the child's

best interests. Logan v. Fairfax County Department of Human

Development, 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991)

(citations omitted). Where, as here, evidence is heard ore

tenus, the trial court's findings will not be disturbed on appeal

unless they are plainly wrong or without evidence to support

them. Lowe v. Department of Public Welfare, 231 Va. 277, 282,

343 S.E.2d 70, 73 (1986). FAILURE TO DOCUMENT REASONS FOR DECISION TO SEEK TERMINATION OF PARENTAL RIGHTS

- 7 - Code § 16.1-283, which governs termination of parental

rights, "is designed to balance the needs of the child against

the rights of the parents and their common interest in preserving

the family relationships." Kaywood v. Halifax County Department

of Social Services, 10 Va. App. 535, 539, 394 S.E.2d 492, 494,

(1990) (quoting Edwards v. County of Arlington, 5 Va. App. 294,

306, 361 S.E.2d 644, 650 (1987)). Even within this statutory

scheme, the best interest of the child is the paramount concern. Lecky v. Reed, 20 Va. App. 306, 311, 456 S.E.2d 538, 540 (1995)

(citations omitted).

Under Code § 16.1-283, the court cannot accept a petition

to terminate parental rights "prior to the filing of a foster

care plan, pursuant to § 16.1-281, which documents termination

of residual parental rights as being in the best interests of

the child." Code § 16.1-283(A). Under Code § 16.1-281(B), if

the child welfare agency determines that it is not reasonably

likely that the child can be returned to his prior family

within a practicable time, the agency must "include [in the

foster care plan] a full description of the reasons for this

conclusion . . . ."

Mrs. Barnhill argues that the department failed to

document the reasons for its decision to request termination of

parental rights pursuant to the statute, and that this failure

constitutes a denial of due process. She contends that she had

corrected the problems documented in the foster care plans, and

- 8 - that her rights were terminated for a reason not documented in

the plans--namely, the allegations of sexual abuse. However,

review of the most recent foster care plans for all four children

reveal that sexual abuse, as well as the Barnhills' refusal to

acknowledge the abuse, is thoroughly documented as a primary

reason for the department's decision to seek termination of

rights. The trial court therefore did not err in accepting the

petition for termination of rights under Code § 16.1-283(A). INSUFFICIENCY OF EVIDENCE THAT PROBLEMS LEADING TO ABUSE COULD NOT BE CORRECTED

Mrs. Barnhill's parental rights were terminated pursuant to

Code § 16.1-283(B). Under that statute, the court may terminate

the residual rights of a parent of a child who has been neglected

or abused and placed in foster care based upon clear and

convincing evidence that such action is in the child's best

interest, and that (1) "[t]he neglect or abuse suffered by [the]

child presented a serious and substantial threat to his life,

health or development," and that (2) "[i]t 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 or parents within a

reasonable period of time." Code § 16.1-283(B)(1)-(2); see

Logan, 13 Va. App. at 128-29, 409 S.E.2d at 463.

Mrs. Barnhill challenges only the trial court's finding that

the conditions resulting in abuse and neglect could not be

corrected within a reasonable time. In support of her challenge,

- 9 - she points to her efforts to meet the requirements imposed by the

court when her children were removed from her home, including her

agreement that the individual convicted of sexual battery would

no longer care for her children. She also points to her

successful efforts to pursue a career as a shipfitter. Mrs.

Barnhill argues that because her evidence was unrefuted by the

department, the court erred in finding that the conditions that

resulted in the abuse or neglect could not be substantially

corrected within a reasonable time. The department does not dispute that Mrs. Barnhill took the

corrective action described above, although it maintains that

Mrs. Barnhill has never accepted responsibility for the incidents

of abuse and neglect that led to the emergency removal of her

children. Of greater significance, however, is the problem of

sexual abuse. The record is clear that the department sought

termination primarily due to the sexual abuse described by the

children. Viewing the record in the light most favorable to the

department, the department demonstrated by clear and convincing

evidence that the three oldest children were sexually abused and

were significantly traumatized by that abuse. Their behavior

regressed even after supervised visits with their parents. While

there was no evidence that Lorissa, the youngest child, was

abused, she was exposed to the abuse of the other children, and

the trial court could reasonably conclude that only permanent

removal from the home would save her from experiencing the abuse

- 10 - directly.

Mrs. Barnhill has done nothing to correct the problem of

sexual abuse. She testified that she would not abuse the

children or allow anyone else to abuse them, but she has never

acknowledged that any abuse took place or that she was involved

in any abuse. Mrs. Barnhill has been in counseling, but she

testified that the focus of the counseling was depression, not

sexual abuse. According to one of the department's expert

witnesses, it takes a minimum of eighteen months for sexual

perpetrators to be rehabilitated so that they can provide a safe

environment for children. But, Mrs. Barnhill has not started the

process of rehabilitation because she has not acknowledged the

abuse. In such circumstances, the trial court did not err in

finding by clear and convincing evidence that the conditions

resulting in abuse and neglect of the children could not be

substantially corrected within a reasonable time. For these

reasons, we affirm the judgment of the circuit court. Affirmed.

- 11 -