COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Clements and Senior Judge Coleman
GWENDOLYN SALES MEMORANDUM OPINION * v. Record No. 0250-03-4 PER CURIAM JULY 22, 2003 ALEXANDRIA DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Donald M. Haddock, Judge
(Gwena Kay Tibbits; Law Offices of Gwena Kay Tibbits, on brief), for appellant.
(Mary Elliott; Office of the City Attorney, on brief), for appellee.
(Dorathea J. Peters; Peters & Mullins, on brief), Guardian ad litem for the children.
Gwendolyn Sales (mother) appeals the decision of the trial
court terminating her residual parental rights in four of her
children, Malik, William, Cristal and Moisha (collectively, "the
children"). On appeal, mother contends the trial court erred by
finding (1) she, without good cause, had been unwilling or unable
to remedy substantially the conditions which led to the foster
care placement of the children; and (2) the termination of her
residual parental rights was in the best interests of the
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. children. The Alexandria Department of Social Services (ADSS)
raises one issue on appeal: whether it was appropriate for the
trial court to consider evidence as of the date of the trial
rather than evaluating the facts as of the date of the foster care
review hearing in the juvenile and domestic relations district
court (JDR court). Upon reviewing the record and briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
See Rule 5A:27.
BACKGROUND
On appeal, we view the evidence and all the reasonable
inferences in the light most favorable to appellee as the party
prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,
391 S.E.2d 344, 346 (1990).
In her opening brief, mother admits that she is a chronic
drug abuser. The record indicates mother has a twenty-year
history of drug abuse. In December 1999, ADSS became involved
with the family after one of the children was born addicted to
illegal substances. ADSS implemented services to assist mother
with the goal of teaching her effective parental skills. ADSS
also coordinated mother's enrollment in an outpatient drug
treatment program. However, in April 2000, mother dropped out of
the program and disappeared for months. ADSS and the guardian ad
litem (GAL) for the children requested a show cause because mother
- 2 - was not cooperating with ADSS and she was not involved in
substance abuse treatment. In November 2000, mother vowed to
cooperate and to reenter substance abuse treatment.
For about six months, mother complied with ADSS intensive
services, and in February 2001 she was admitted into a drug
clinic. Mother complied with the treatment until she had a
relapse in May 2001. After May 2001, mother had sporadic contact
with ADSS and she was discharged from the drug clinic due to
testing positive for drug use, missing meetings, and
non-compliance with the rules.
In August 2001, ADSS filed a petition alleging that the
children were abused and/or neglected. The petition also
requested that the JDR court order the removal of the children
from mother's care and the placement of the children into foster
care. ADSS made the requests based on mother's lack of
cooperation with substance abuse treatment, her "drug environment
lifestyle," her frequent absences from home, her provision of
inadequate caretakers for the children, and her lack of
cooperation with ADSS. In addition, some of the children had
untreated medical and dental conditions. Several of the children
were not enrolled in school, and one child was developmentally
delayed.
In September 2001, the JDR court ordered the removal of the
children from the home, finding that all of the children were
- 3 - abused and neglected. The court also ordered mother to either
enter a residential drug treatment program or go to jail. Mother
entered a three-month residential drug treatment facility in
September 2001. While there, she maintained contact with her
children, but she did not participate in her children's therapy
sessions. After completing the three-month program, the
recommended treatment plan was for mother to enter a women's
recovery facility. However, mother returned home.
On May 23, 2002, ADSS presented the JDR court permanency
plans for the children with the goal of return to parent on the
conditions that mother remain sober and initiate parental skills
training. Mother maintained that she had been drug-free from
September 7, 2001 until May 23, 2002. The JDR court set the
matter for a full hearing and requested evidence that mother was
maintaining consistent sobriety. After May 23, 2002, mother
missed five substance abuse therapy sessions, she missed several
drug screening tests, and she missed two court hearings.
Thereafter, in July 2002, ADSS changed the goal from return
to parent to adoption, stating that it did not appear that mother
would be able to reach a state of recovery and parental ability to
meet her children's needs. A risk assessment completed prior to
mother's most recent relapse indicated the children were at "high
risk," meaning that it was "not likely that timely permanency
and/or child well-being will be achieved." ADSS and numerous
- 4 - drug-related services had worked intensively with mother for two
and one-half years on her sobriety issues. ADSS also found that
mother was "in denial" about the special needs of her children and
the fact that her constant drug use had affected her children and
resulted in their neglect.
On October 17, 2002, the JDR court approved the foster care
plans with goal of adoption and terminated mother's parental
rights to the four children. After the October 2002 termination
hearing, ADSS informed mother that she could arrange for
visitation with the children, but she never made the arrangements.
On December 23, 2002, mother entered a social detoxification
program, which consisted of daily group therapy meetings. Mother
also appealed the decision of the JDR court to the circuit court.
At the time of the January 3, 2003 hearing in the trial
court, mother had been "clean" for about thirty days. Tracy
Underhill, a therapist and substance abuse worker for the City of
Alexandria, testified that mother was in the early recovery stage
of rehabilitation and would probably need several more years of
substance abuse treatment. The GAL for the children joined ADSS
in asking for the termination of mother's parental rights. The
GAL stated that mother does not recognize that her addiction,
lifestyle, and lack of parenting have caused problems with each of
the children. The GAL also noted that although mother has had
periods of sobriety, she has relapsed into drug use again. The
- 5 - GAL opined that the termination of mother's parental rights would
be in the best interests of the children. The GAL stated that
mother "has a long way to go toward . . . learning what she needs
to parent a child" and the GAL saw "no hope of it being done right
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COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Clements and Senior Judge Coleman
GWENDOLYN SALES MEMORANDUM OPINION * v. Record No. 0250-03-4 PER CURIAM JULY 22, 2003 ALEXANDRIA DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Donald M. Haddock, Judge
(Gwena Kay Tibbits; Law Offices of Gwena Kay Tibbits, on brief), for appellant.
(Mary Elliott; Office of the City Attorney, on brief), for appellee.
(Dorathea J. Peters; Peters & Mullins, on brief), Guardian ad litem for the children.
Gwendolyn Sales (mother) appeals the decision of the trial
court terminating her residual parental rights in four of her
children, Malik, William, Cristal and Moisha (collectively, "the
children"). On appeal, mother contends the trial court erred by
finding (1) she, without good cause, had been unwilling or unable
to remedy substantially the conditions which led to the foster
care placement of the children; and (2) the termination of her
residual parental rights was in the best interests of the
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. children. The Alexandria Department of Social Services (ADSS)
raises one issue on appeal: whether it was appropriate for the
trial court to consider evidence as of the date of the trial
rather than evaluating the facts as of the date of the foster care
review hearing in the juvenile and domestic relations district
court (JDR court). Upon reviewing the record and briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
See Rule 5A:27.
BACKGROUND
On appeal, we view the evidence and all the reasonable
inferences in the light most favorable to appellee as the party
prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,
391 S.E.2d 344, 346 (1990).
In her opening brief, mother admits that she is a chronic
drug abuser. The record indicates mother has a twenty-year
history of drug abuse. In December 1999, ADSS became involved
with the family after one of the children was born addicted to
illegal substances. ADSS implemented services to assist mother
with the goal of teaching her effective parental skills. ADSS
also coordinated mother's enrollment in an outpatient drug
treatment program. However, in April 2000, mother dropped out of
the program and disappeared for months. ADSS and the guardian ad
litem (GAL) for the children requested a show cause because mother
- 2 - was not cooperating with ADSS and she was not involved in
substance abuse treatment. In November 2000, mother vowed to
cooperate and to reenter substance abuse treatment.
For about six months, mother complied with ADSS intensive
services, and in February 2001 she was admitted into a drug
clinic. Mother complied with the treatment until she had a
relapse in May 2001. After May 2001, mother had sporadic contact
with ADSS and she was discharged from the drug clinic due to
testing positive for drug use, missing meetings, and
non-compliance with the rules.
In August 2001, ADSS filed a petition alleging that the
children were abused and/or neglected. The petition also
requested that the JDR court order the removal of the children
from mother's care and the placement of the children into foster
care. ADSS made the requests based on mother's lack of
cooperation with substance abuse treatment, her "drug environment
lifestyle," her frequent absences from home, her provision of
inadequate caretakers for the children, and her lack of
cooperation with ADSS. In addition, some of the children had
untreated medical and dental conditions. Several of the children
were not enrolled in school, and one child was developmentally
delayed.
In September 2001, the JDR court ordered the removal of the
children from the home, finding that all of the children were
- 3 - abused and neglected. The court also ordered mother to either
enter a residential drug treatment program or go to jail. Mother
entered a three-month residential drug treatment facility in
September 2001. While there, she maintained contact with her
children, but she did not participate in her children's therapy
sessions. After completing the three-month program, the
recommended treatment plan was for mother to enter a women's
recovery facility. However, mother returned home.
On May 23, 2002, ADSS presented the JDR court permanency
plans for the children with the goal of return to parent on the
conditions that mother remain sober and initiate parental skills
training. Mother maintained that she had been drug-free from
September 7, 2001 until May 23, 2002. The JDR court set the
matter for a full hearing and requested evidence that mother was
maintaining consistent sobriety. After May 23, 2002, mother
missed five substance abuse therapy sessions, she missed several
drug screening tests, and she missed two court hearings.
Thereafter, in July 2002, ADSS changed the goal from return
to parent to adoption, stating that it did not appear that mother
would be able to reach a state of recovery and parental ability to
meet her children's needs. A risk assessment completed prior to
mother's most recent relapse indicated the children were at "high
risk," meaning that it was "not likely that timely permanency
and/or child well-being will be achieved." ADSS and numerous
- 4 - drug-related services had worked intensively with mother for two
and one-half years on her sobriety issues. ADSS also found that
mother was "in denial" about the special needs of her children and
the fact that her constant drug use had affected her children and
resulted in their neglect.
On October 17, 2002, the JDR court approved the foster care
plans with goal of adoption and terminated mother's parental
rights to the four children. After the October 2002 termination
hearing, ADSS informed mother that she could arrange for
visitation with the children, but she never made the arrangements.
On December 23, 2002, mother entered a social detoxification
program, which consisted of daily group therapy meetings. Mother
also appealed the decision of the JDR court to the circuit court.
At the time of the January 3, 2003 hearing in the trial
court, mother had been "clean" for about thirty days. Tracy
Underhill, a therapist and substance abuse worker for the City of
Alexandria, testified that mother was in the early recovery stage
of rehabilitation and would probably need several more years of
substance abuse treatment. The GAL for the children joined ADSS
in asking for the termination of mother's parental rights. The
GAL stated that mother does not recognize that her addiction,
lifestyle, and lack of parenting have caused problems with each of
the children. The GAL also noted that although mother has had
periods of sobriety, she has relapsed into drug use again. The
- 5 - GAL opined that the termination of mother's parental rights would
be in the best interests of the children. The GAL stated that
mother "has a long way to go toward . . . learning what she needs
to parent a child" and the GAL saw "no hope of it being done right
now in the future."
The trial court terminated mother's parental rights pursuant
to Code § 16.1-283(B) and (C). The trial court found that mother
had primarily been making efforts to deal only with her addiction
problems and "without great success." Yet, mother had "virtually
no focus on improving the parenting skills." The trial court
found that mother "is just not capable of taking care of those
children, and albeit the addiction may be the root cause of that,
her efforts to cure the addiction have been unsuccessful and her
efforts to increase substantially her parenting skills have been
non-existent."
ANALYSIS
Termination
"Code § 16.1-283 embodies 'the statutory scheme for the
termination of residual parental rights in this Commonwealth.'"
Lecky v. Reed, 20 Va. App. 306, 311, 456 S.E.2d 538, 540 (1995)
(citation omitted). Subsection (C)(2), one of the subsections
under which the trial court terminated mother's parental rights in
this case, requires proof, by clear and convincing evidence, that
(1) the termination is in the best interests of the child, (2)
- 6 - "reasonable and appropriate" services have been offered to help
the parent "substantially remedy the conditions which led to or
required continuation of the child's foster care placement," and
(3) despite those services, the parent has failed, "without good
cause," to remedy those conditions. Clear and convincing evidence
is "'that measure or degree of proof which will produce in the
mind of the trier of facts a firm belief or conviction as to the
allegations sought to be established.'" Martin v. Pittsylvania
County Dep't of Soc. Servs., 3 Va. App. 15, 21, 348 S.E.2d 13, 16
(1986) (citation omitted).
Mother contends she made substantial progress to remedy the
conditions which led to the foster care placement of the children
and the trial court's finding that she had been unwilling or
unable to remedy substantially the conditions which led to their
foster care placement was plainly wrong and without evidence to
support it. However, the evidence, viewed in the light most
favorable to ADSS, established that ADSS made "reasonable and
appropriate efforts" to help mother remedy the conditions which
both "led to" and "required continuation of" the children's foster
care placement. Code § 16.1-283(C)(2). Nonetheless, mother
failed to make reasonable progress toward eliminating the
conditions which led to the placement.
Mother has been a chronic drug abuser for over twenty years.
For more than two years, ADSS and other services made repeated
- 7 - efforts to assist mother in substance abuse rehabilitation and to
assist the children with counseling and other lifestyle matters.
However, mother continued to have relapses and she cooperated with
the service agencies only sporadically. Mother also lied about
her continuing violent relationship with a man despite a
protective order prohibiting contact between the children and the
man. The evidence showed that this man had encouraged one of
mother's children to steal.
Mother's drug use and chosen lifestyle greatly affected the
lives of her children. In addition, because she has failed to
remedy her addiction problems, mother has not addressed issues
relating to her parenting skills and she has not sufficiently
attended to the children's needs, such as enrolling them in
school, providing adequate supervision, and providing appropriate
medical treatment. Although a parent's limitations are factors
for the court to consider, they do not necessarily constitute good
cause for failing to remedy the conditions leading to foster care
placement. See Lecky, 20 Va. App. at 312, 456 S.E.2d at 541.
Furthermore, "[i]t is clearly not in the best interests of a
child 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 County Dep't of Soc.
Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990) (citation
omitted).
- 8 - In determining what is in the best interests of the child, a court must evaluate and consider many factors, including 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 in determining the best interests of the child or children.
Barkey v. Commonwealth, 2 Va. App. 662, 668, 347 S.E.2d 188, 191
(1986).
All four of the children have significant needs, including
physical, emotional, academic and medical necessities. Two of
the children have been placed in therapeutic foster homes
because of their extensive special needs. Mother has not
provided a stable environment for the children, and she has been
unable to address her lack of parenting skills because of her
addiction. "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 v. Fairfax
County Dep't of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d
460, 463 (1991) (citation omitted). The record supports the
trial court's finding that ADSS presented clear and convincing
evidence satisfying the statutory requirements of Code
- 9 - § 16.1-283 and establishing that termination of mother's
parental rights is in the children's best interests.
Consideration of Evidence
The trial court properly considered evidence of the
family's circumstances between the time of the May 2002 hearing
in JDR court and the date of the trial. An appeal from the
juvenile court must be heard de novo by the circuit court. Code
§ 16.1-136. "'A de novo hearing means a trial anew, with the
burden of proof remaining upon the party with whom it rested in
the juvenile court.'" Parish v. Spaulding, 20 Va. App. 130,
132, 455 S.E.2d 728, 729 (1995) (citation omitted). "[A]t a
trial de novo in the circuit court, the parties are not
restricted to the evidence presented before the juvenile court.
The circuit court must consider all relevant evidence, even if
such evidence had not been considered by the juvenile court."
Fairfax County Dep't of Family Servs. v. D.N., 29 Va. App. 400,
406, 512 S.E.2d 830, 832 (1999). "A trial court is required to
consider any relevant evidence developed prior to the hearing
date that may impact on the child's best interests." Parish, 20
Va. App. at 132-33, 455 S.E.2d at 729.
Accordingly, we summarily affirm the decision of the trial
court.
Affirmed.
- 10 -