COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Lemons ∗ Argued at Alexandria, Virginia
MARCUS STERGIOU MEMORANDUM OPINION ∗∗ BY v. Record No. 0156-99-4 JUDGE ROSEMARIE ANNUNZIATA MARCH 21, 2000 FREDERICK COUNTY DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF FREDERICK COUNTY John R. Prosser, Judge
Mark A. Vann (Chasler and Bowman, P.L.C., on brief), for appellant.
Beth M. Coyne (Fowler, Griffin, Coyne, Coyne & Patton, P.C., on brief), for appellee.
Marcus Stergiou appeals the order of the Circuit Court of
Frederick County terminating his residual parental rights toward
his natural children, M.H. and J.P. We find no error and affirm
the judgment of the lower court.
On August 9, 1995, the Frederick County Department of
Social Services took custody of M.H. and J.P. after it was
contacted by their seventy-six-year-old maternal grandmother,
Bell Ann Parsons. Parsons indicated that the children's mother,
∗ Justice Lemons participated in the hearing and decision of this case prior to his investiture as a Justice of the Supreme Court of Virginia. ∗∗ Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Joeann Hawkins, had left the children with her on August 4, 1995
and that Hawkins had an alcohol and substance abuse problem.
Parsons also told Social Services that Stergiou was the father
of the children. Social Services placed the children in
emergency foster care. Stergiou was incarcerated in June, 1996
upon conviction for drug possession. In July, 1998, the
juvenile and domestic relations district court terminated his
parental rights. In a trial de novo, the Frederick County
Circuit Court on December 14, 1998, likewise ordered the
termination of Stergiou's residual parental rights. Upon appeal
to this Court, Stergiou contends that the trial court's
termination of his residual parental rights is without evidence
to support it, noting, in particular, that long-term
incarceration, without more, is insufficient evidence to warrant
termination of parental rights. We find Stergiou's appeal to be
without merit and affirm.
"When addressing matters concerning a child, including the
termination of a parent's residual parental rights, the
paramount consideration of a trial court is the child's best
interests." Logan v. Fairfax Co. Dept. of Human Development, 13
Va. App. 123, 128, 409 S.E.2d 460, 463 (1991) (citing Toombs v.
Lynchburg Div. of Soc. Servs., 223 Va. 225, 230, 288 S.E.2d 405,
407-08 (1982); Farley v. Farley, 9 Va. App. 326, 329, 387 S.E.2d
794, 796 (1990)). In making decisions concerning a child's
- 2 - welfare, the court is vested with broad discretion to guard and
to foster a child's best interests. See Logan, 13 Va. App. at
128, 409 S.E.2d at 463 (citing Farley, 9 Va. App. at 328, 387
S.E.2d at 795). It follows that long-term incarceration does
not, per se, warrant the termination of parental rights. But
incarceration is nevertheless a factor which may be considered
in deciding the question. See Ferguson v. Stafford County Dept.
of Soc. Servs., 14 Va. App. 333, 340, 417 S.E.2d 1, 5 (1992).
In the instant case, the court found "by very clear and
convincing evidence" that the children had been neglected or
abused; that this neglect and abuse was a serious threat to
their lives, health, or development, and that it was not
reasonably likely that the conditions which resulted in the
neglect or abuse could be substantially corrected so as to allow
the children's safe return to the father within a reasonable
time; that the father, without good cause, did not respond to or
follow through with appropriate, available, and reasonable
rehabilitative efforts on the part of social, medical, mental
health, or other rehabilitative agencies designed to reduce,
eliminate, or prevent the neglect or abuse; that he, without
good cause, was unwilling or unable within a reasonable period
of time to remedy substantially the conditions that led to the
children's placement in foster care; and that he failed, without
- 3 - good cause, to communicate with the children for a period of
twelve months. 1
A trial court's decision, based upon an ore tenus hearing,
is entitled to great weight, and it will not be disturbed unless
it is plainly wrong or without evidence to support it. See
Orlandi v. Orlandi, 23 Va. App. 21, 28, 473 S.E.2d 716, 719
(1996) (citing Venable v. Venable, 2 Va. App. 178, 186, 342
S.E.2d 646, 651 (1986)). In reviewing the evidence on appeal,
the evidence and all reasonable inferences arising from it must
be cast in the light most favorable to the party prevailing
below, Social Services. See Martin v. Pittsylvania County Dept.
of Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d 15, 16 (1986).
1 The trial court's findings addressed the relevant statutory factors which govern its decision in this case. Code § 16.1-283(B) provides that residual parental rights may be terminated upon a showing by clear and convincing evidence that:
It is not reasonably likely that the conditions which resulted in . . . neglect or abuse can be substantially corrected or eliminated so as to allow the child's return to his parent or parents within a reasonable period of time. . . . Proof of . . . the following shall constitute prima facie evidence of [such lack of reasonable likelihood]: The parent or parents have habitually abused or are addicted to intoxicating liquors, narcotics or other dangerous drugs to the extent that proper parental ability has been seriously impaired and the parent, without good cause, has not responded to or followed through with recommended and available treatment which could have improved the capacity for adequate parental functioning . . . .
- 4 - The evidence, thus viewed, fully supports the decision of the
trial court and makes manifest that it did not rely solely on
the fact of Stergiou's incarceration in reaching its
conclusions.
Stergiou had lived with Hawkins and the children
intermittently from roughly 1990 through 1993, the approximate
time when he moved from the home permanently. M.H. was
approximately four years old at the time; J.P. just two. Thus,
Stergiou had only lived together with Hawkins and the children
for about half the time since J.P.'s birth in 1992. In April,
1995, Hawkins left her children in Stergiou's custody at his
residence in Manassas, Virginia. 2 He subsequently contacted the
Prince William County Department of Social Services and reported
that he lacked the means to care for the children and requested
that the department assume custody of M.H. and J.P., who were
then five and three years old, respectively. The Department
responded and placed the children in foster care. At the time,
Stergiou reportedly had a severe substance abuse problem and was
evading law enforcement, and the Department had no current
address for him.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Lemons ∗ Argued at Alexandria, Virginia
MARCUS STERGIOU MEMORANDUM OPINION ∗∗ BY v. Record No. 0156-99-4 JUDGE ROSEMARIE ANNUNZIATA MARCH 21, 2000 FREDERICK COUNTY DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF FREDERICK COUNTY John R. Prosser, Judge
Mark A. Vann (Chasler and Bowman, P.L.C., on brief), for appellant.
Beth M. Coyne (Fowler, Griffin, Coyne, Coyne & Patton, P.C., on brief), for appellee.
Marcus Stergiou appeals the order of the Circuit Court of
Frederick County terminating his residual parental rights toward
his natural children, M.H. and J.P. We find no error and affirm
the judgment of the lower court.
On August 9, 1995, the Frederick County Department of
Social Services took custody of M.H. and J.P. after it was
contacted by their seventy-six-year-old maternal grandmother,
Bell Ann Parsons. Parsons indicated that the children's mother,
∗ Justice Lemons participated in the hearing and decision of this case prior to his investiture as a Justice of the Supreme Court of Virginia. ∗∗ Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Joeann Hawkins, had left the children with her on August 4, 1995
and that Hawkins had an alcohol and substance abuse problem.
Parsons also told Social Services that Stergiou was the father
of the children. Social Services placed the children in
emergency foster care. Stergiou was incarcerated in June, 1996
upon conviction for drug possession. In July, 1998, the
juvenile and domestic relations district court terminated his
parental rights. In a trial de novo, the Frederick County
Circuit Court on December 14, 1998, likewise ordered the
termination of Stergiou's residual parental rights. Upon appeal
to this Court, Stergiou contends that the trial court's
termination of his residual parental rights is without evidence
to support it, noting, in particular, that long-term
incarceration, without more, is insufficient evidence to warrant
termination of parental rights. We find Stergiou's appeal to be
without merit and affirm.
"When addressing matters concerning a child, including the
termination of a parent's residual parental rights, the
paramount consideration of a trial court is the child's best
interests." Logan v. Fairfax Co. Dept. of Human Development, 13
Va. App. 123, 128, 409 S.E.2d 460, 463 (1991) (citing Toombs v.
Lynchburg Div. of Soc. Servs., 223 Va. 225, 230, 288 S.E.2d 405,
407-08 (1982); Farley v. Farley, 9 Va. App. 326, 329, 387 S.E.2d
794, 796 (1990)). In making decisions concerning a child's
- 2 - welfare, the court is vested with broad discretion to guard and
to foster a child's best interests. See Logan, 13 Va. App. at
128, 409 S.E.2d at 463 (citing Farley, 9 Va. App. at 328, 387
S.E.2d at 795). It follows that long-term incarceration does
not, per se, warrant the termination of parental rights. But
incarceration is nevertheless a factor which may be considered
in deciding the question. See Ferguson v. Stafford County Dept.
of Soc. Servs., 14 Va. App. 333, 340, 417 S.E.2d 1, 5 (1992).
In the instant case, the court found "by very clear and
convincing evidence" that the children had been neglected or
abused; that this neglect and abuse was a serious threat to
their lives, health, or development, and that it was not
reasonably likely that the conditions which resulted in the
neglect or abuse could be substantially corrected so as to allow
the children's safe return to the father within a reasonable
time; that the father, without good cause, did not respond to or
follow through with appropriate, available, and reasonable
rehabilitative efforts on the part of social, medical, mental
health, or other rehabilitative agencies designed to reduce,
eliminate, or prevent the neglect or abuse; that he, without
good cause, was unwilling or unable within a reasonable period
of time to remedy substantially the conditions that led to the
children's placement in foster care; and that he failed, without
- 3 - good cause, to communicate with the children for a period of
twelve months. 1
A trial court's decision, based upon an ore tenus hearing,
is entitled to great weight, and it will not be disturbed unless
it is plainly wrong or without evidence to support it. See
Orlandi v. Orlandi, 23 Va. App. 21, 28, 473 S.E.2d 716, 719
(1996) (citing Venable v. Venable, 2 Va. App. 178, 186, 342
S.E.2d 646, 651 (1986)). In reviewing the evidence on appeal,
the evidence and all reasonable inferences arising from it must
be cast in the light most favorable to the party prevailing
below, Social Services. See Martin v. Pittsylvania County Dept.
of Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d 15, 16 (1986).
1 The trial court's findings addressed the relevant statutory factors which govern its decision in this case. Code § 16.1-283(B) provides that residual parental rights may be terminated upon a showing by clear and convincing evidence that:
It is not reasonably likely that the conditions which resulted in . . . neglect or abuse can be substantially corrected or eliminated so as to allow the child's return to his parent or parents within a reasonable period of time. . . . Proof of . . . the following shall constitute prima facie evidence of [such lack of reasonable likelihood]: The parent or parents have habitually abused or are addicted to intoxicating liquors, narcotics or other dangerous drugs to the extent that proper parental ability has been seriously impaired and the parent, without good cause, has not responded to or followed through with recommended and available treatment which could have improved the capacity for adequate parental functioning . . . .
- 4 - The evidence, thus viewed, fully supports the decision of the
trial court and makes manifest that it did not rely solely on
the fact of Stergiou's incarceration in reaching its
conclusions.
Stergiou had lived with Hawkins and the children
intermittently from roughly 1990 through 1993, the approximate
time when he moved from the home permanently. M.H. was
approximately four years old at the time; J.P. just two. Thus,
Stergiou had only lived together with Hawkins and the children
for about half the time since J.P.'s birth in 1992. In April,
1995, Hawkins left her children in Stergiou's custody at his
residence in Manassas, Virginia. 2 He subsequently contacted the
Prince William County Department of Social Services and reported
that he lacked the means to care for the children and requested
that the department assume custody of M.H. and J.P., who were
then five and three years old, respectively. The Department
responded and placed the children in foster care. At the time,
Stergiou reportedly had a severe substance abuse problem and was
evading law enforcement, and the Department had no current
address for him.
2 In addition to M.H. and J.P., Hawkins also left in appellant's custody her two elder children, whom she bore by the late Michael Carroll Hawkins. Parental rights for those children are not at issue in this appeal.
- 5 - Stergiou made no attempt to seek custody of the children
after they came into the custody of the Department. Instead, on
November 25, 1995, he asked that blood tests be conducted to
determine paternity. He agreed that no visitation with the
children would occur until the paternity testing was complete
and paternity established. The testing was performed on January
2, 1996, and the results established appellant's paternity. He
gave the Department and the court a mailing address for him in
Bethesda, Maryland at that time.
Three months later, in March, 1996, appellant provided
Prince William County Department of Social Services with a
mailing address and telephone number in Manassas, Virginia.
When social workers attempted to phone him later in the month,
they found the number disconnected, however. In addition,
Stergiou failed to submit a completed and notarized information
sheet authorizing the Department to conduct a home study at his
residence.
The Prince William Department had no further contact with
appellant until a year later when, in March, 1997, social worker
Julie Deiter located him at the Prince William County jail,
where he was incarcerated for drug possession. Deiter spoke to
Stergiou by telephone while he was incarcerated and learned that
he had been in jail since June, 1996 and that he anticipated
being released in December, 1997. He had made no attempt to
- 6 - contact Prince William social services following his
incarceration in June, 1996 and he stated there was no sense in
writing to his children during that time. Deiter arranged an
appointment with Stergiou in December, 1997 to discuss his plans
for the children following his release. However, when she
called the jail in December, 1997 to confirm her appointment
with him, she found he was then incarcerated in federal prison
serving a term of seven to eight years for arson and use of a
firearm in the commission of a felony. These convictions arose
from an arson committed in late 1993 or 1994, at approximately
the same time Stergiou was visiting and attempting to file for
custody of M.H. and J.P. from Hawkins. He acknowledged that
M.H. would be 15 and J.P. would be nearly 12 at the time of his
possible release date, 2005.
The evidence respecting the status and condition of the
children established that M.H. and J.P. each displayed emotional
and developmental difficulties upon their entry into foster
care. As of November 23, 1998, the date the Frederick County
Department of Social Services filed for termination of parental
rights, the children had been in the same foster care placement
for over two years and had attended counseling for the same
period with Don Wilhelm, L.C.S.W., a therapist with United
Methodist Family Services. When the children began therapy,
they manifested problems with trust, difficulty sleeping,
- 7 - aggressive behavior and, in J.P.'s case particularly,
oppositional behavior. The children have demonstrated notable
improvement in their emotional and psychological development,
and Wilhelm has opined that their continued well-being requires
that they have no further contact with any member of their
biological family.
In making decisions concerning a child's welfare, trial
courts are vested with broad discretion to guard and to foster
the child's best interests. See Logan, 13 Va. App. at 128, 409
S.E.2d at 463 (citing Farley, 9 Va. App. at 328, 387 S.E.2d at
795). The child's best interest is the paramount consideration
of a trial court in such a case. See id. The decision of the
trial judge is supported by the evidence required to meet the
statutory factors governing the termination of residual parental
rights, and the decision reflects and serves the best interests
of the children. It is accordingly affirmed.
Affirmed.
- 8 -