Laura Kenny v. Richmond Department of Social Servs

• Court: Court of Appeals of Virginia
• Decided: June 30, 1998
• Docket: 1483972
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Bumgardner Argued at Richmond, Virginia

LAURA KENNY MEMORANDUM OPINION * BY v. Record No. 1483-97-2 JUDGE RUDOLPH BUMGARDNER, III JUNE 30, 1998 RICHMOND DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Theodore J. Markow, Judge Richard G. White, Jr., for appellant.

Sandra L. Karison, Assistant City Attorney, for appellee.

Laura Kenny appeals a decision to terminate her parental

rights. She argues that there was insufficient evidence to

support the decision and that the trial court erred when it did

not ascertain whether her child was of an age of discretion. For

the reasons that follow, we affirm.

When reviewing a decision to terminate parental rights, we

view the evidence in the light most favorable to the prevailing

party below. See Logan v. Fairfax County Dep't of Human Dev., 13

Va. App. 123, 128, 409 S.E.2d 460, 463 (1991). Where, as here,

evidence is heard ore tenus, we will not disturb the trial

court's judgment unless plainly wrong or without evidence to

support it. See id.; Lowe v. Dep't of Pub. Welfare, 231 Va. 277,

282, 343 S.E.2d 70, 73 (1986).

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Laura Kenny's daughter was born May 21, 1986. She was

placed in foster care March 27, 1992 and remained there through

the trial in 1997. While the daughter has been in foster care,

Kenny has not been able to improve her parenting skills. Kenny,

depressed and mildly mentally retarded, was inconsistent in

following through on counseling therapy. Her medical prognosis

for alleviating her problems is low. She has poor insight into

dangers, and she is not able to protect her child. Her history

indicates that she will probably have future crises. Because of

the lack of insight, she does not recognize how to overcome

conflict and does not know the logical consequences of her acts.

She is only able to visit in a supervised setting. She has made

no progress in implementing the parenting skills taught her. Her

daughter is difficult to manage. One witness testified that it

would be best for Kenny and her daughter to continue supervised

relations. The daughter told her foster mother that she wanted

to be adopted. The trial court heard the testimony of the parties. From

the testimony, the trial court could find by clear and convincing

evidence that it is in the best interest of the child to

terminate Kenny's parental rights and that Kenny is unable within

a reasonable period of time to remedy substantially the

conditions that led to the foster care placement. During the six

years the child has been in foster care, Kenny has not been able

to advance past the stage of being able to visit in a supervised

-2- capacity. She does not recognize situations that would put the

child in danger, and she is not able to cope with crises when

they arise. The evidence supports the finding that both

requirements of Code § 16.1-283(B) were met.

Kenny argues that the court erred when it failed to

ascertain that the child was of an age of discretion when it

terminated her parental rights. Code § 16.1-283(E) states:

"Notwithstanding any other provisions of this section, residual

parental rights shall not be terminated if it is established that

the child, if he is fourteen years of age or older or otherwise

of an age of discretion as determined by the court, objects to

such termination." At the time of the hearing the child was eleven. The child

did not testify, and there was no proffer of her testimony. The

mother objected to the statement of the foster parent that the

child preferred to be adopted. The trial judge made no ruling on

the mother's hearsay objection. There was no evidence presented

nor any proffered that suggested the child was of an age of

discretion.

The appellant cites Hawks v. Dinwiddie Dep't of Soc. Servs.,

25 Va. App. 247, 487 S.E.2d 285 (1997), and Deahl v. Winchester

Dep't of Soc. Servs., 224 Va. 664, 299 S.E.2d 863 (1983). Both

of those cases are distinguishable from the case at bar. In

Hawks, the evidence indicated that the child understood the

termination proceedings and its ramifications. Hawks, 25 Va.

-3- App. at 254, 487 S.E.2d at 288. Here there is no evidence to

that effect. Indeed, the only evidence on the point is argument

from the guardian ad litem that the child probably did not

understand the difference between adoption and permanent foster

care. In Deahl, the child was nearly fourteen and stated he

wanted to return home on a permanent basis. Other evidence

indicated that he said that because he did not want to upset his

parents after a pleasant visit with them. The Supreme Court

stated this evidence indicated the child was a mature thinker. While the trial court in the present case made no specific

ruling that the child was not of an age of discretion, it did

hear extensive evidence about the child and her relation to her

mother. This evidence provides no suggestion that the child had

reached a level of development that could be called the age of

discretion. Even if there had been evidence suggesting the child

was of the age of discretion, the evidence was that the child

wanted to be adopted and to have her mother's parental rights

terminated. If there was any error, it was harmless.

Accordingly, we affirm the decision to terminate parental rights. Affirmed.

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