Ruth L. Gentry v. Harrisongurg-Rockingham S.S., et

• Court: Court of Appeals of Virginia
• Decided: March 17, 1998
• Docket: 1340973
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

RUTH L. GENTRY MEMORANDUM OPINION * v. Record No. 1340-97-3 PER CURIAM MARCH 17, 1998 HARRISONBURG-ROCKINGHAM SOCIAL SERVICES DISTRICT AND AMBER MARIE PRESGRAVES, AN INFANT

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY John J. McGrath, Jr., Judge (Thomas A. Howell, on briefs), for appellant.

(L. Quinn Kaylor; Christel L. Lewis, Guardian ad litem; Lewis, Ruple, Hart & Temeles, on brief), for appellees.

Ruth L. Gentry appeals the decision of the circuit court

terminating her residual parental rights to her younger daughter.

Gentry contends that the trial court erred when it found that

the Harrisonburg-Rockingham Social Services District (Social

Services) presented clear and convincing evidence sufficient

under Code § 16.1-283(B) and (C) to terminate her parental

rights. 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.

"Code § 16.1-283 embodies 'the statutory scheme for the

. . . termination of residual parental rights in this * Pursuant to Code § 17-116.010 this opinion is not designated for publication. Commonwealth.'" Lecky v. Reed, 20 Va. App. 306, 311, 456 S.E.2d

538, 540 (1995) (citation omitted). "This 'scheme provides

detailed procedures designed to protect the rights of the parents

and their child,' balancing their interests while seeking to

preserve the family. However, we have consistently held that

'the child's best interest is the paramount concern.'" Id.

(citations omitted). "In matters of a child's welfare, trial courts are vested with broad discretion in making the decisions necessary to guard and to foster a child's best interests." 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) (citations omitted).

The child was removed from Gentry's custody on December 22,

1994, following allegations that Bruce W. Presgraves, the child's

father, had physically abused the child. Presgraves was living

with Gentry, the child, and Gentry's older daughter. By order

entered April 20, 1995, Presgraves pleaded guilty to felony child

abuse. His sentence was suspended with the condition, among

others, that he not threaten, harm, or harass Gentry or the

children for six months. Gentry regained physical custody of the

child in August 1995. Pursuant to the agreement Gentry signed at

that time, she agreed to continue counseling; cooperate with the

in-home services provided; not allow any contact between the

child and Presgraves; maintain a stable home; and keep Social

2 Services informed of changes in her address or financial

circumstances. In August 1995, however, after an eight-month

absence, Presgraves began staying overnight with Gentry. Gentry

testified at trial that she signed the agreement knowing that she

was hiding the fact of her renewed relationship with Presgraves

from Social Services.

In February 1996, the juvenile and domestic relations

district court granted Presgraves' petition for visitation with

the child, and two supervised visitations were held. In the

February service plan, Social Services noted that Gentry was

cooperating and that the child had adjusted to living with

Gentry. However, on February 29, 1996, Social Services

discovered Gentry and Presgraves arriving together with the child

for Presgraves' visitation. Social Services stopped Presgraves'

visitations, and, several days later, placed the child in foster

care. In April 1996, Social Services began termination

proceedings in district court. Gentry appealed the district

court's termination order to the circuit court. Following two

days of testimony, the circuit court entered an order terminating

the parental rights of Presgraves and Gentry. Gentry appealed. Code § 16.1-283(B)

The trial court found that clear and convincing evidence

established that it was in the best interests of the child to

terminate Gentry's parental rights because the neglect and abuse

suffered by the child presented a serious and substantial threat

3 to her life, health or development. See Code § 16.1-283(B)(1).

The trial court further found that it was "not reasonably likely

that the conditions which resulted in the neglect or abuse

[could] be substantially corrected or eliminated" to allow the

child's safe return to Gentry within a reasonable period of time.

See Code § 16.1-283(B)(2). The trial court also found that

Social Services presented prima facie evidence of the conditions

set out in Code § 16.1-283(B)(2) by presenting proof that Gentry

"without good cause, [has] not responded to or followed through

with appropriate, available and reasonable rehabilitative efforts

. . . designed to reduce, eliminate or prevent the neglect or

abuse of the child." Code § 16.1-283(B)(2)(c). Gentry contends that there was insufficient evidence that

her daughter was neglected. However, the removal order noted

that Gentry "does not object to emergency placement due to

threats against her" by Presgraves. At trial, Gentry could not

remember if she agreed to the placement. Her testimony

demonstrated that Presgraves was threatening her because she had

reported that he broke the child's collarbone. As noted by the

trial court, Gentry voluntarily relinquished custody of her

daughter in December 1994 after Presgraves broke the child's

collarbone. Gentry admitted that Presgraves "harassed" her to

withdraw her incriminating comments, but defended him by

asserting that he never physically abused her when harassing her.

The trial court found that the evidence was clear and convincing

4 that the child was neglected. That finding was not plainly

wrong.

Gentry also contends that there was insufficient evidence

that she failed to respond to the rehabilitative efforts on the

part of Social Services. The trial court found, based upon the

evidence and the testimony of the parties, social workers, and

expert witnesses, that Gentry suffers from a mental or emotional

deficiency in that she is drawn to relationships with abusive

men. Both her children were fathered by men who were

demonstrably abusive. Gentry admitted that Presgraves was

abusive, but she was unable or unwilling to avoid those

relationships. Dr. Mario Dennis, a psychologist who evaluated

Gentry, testified that it was likely that Gentry would continue

to enter into abusive relationships in the future. Gentry's service agreement with Social Services expressly

prohibited contact with Presgraves. While Gentry suggests that

she did not realize the consequences of continuing her

relationship with Presgraves, it is abundantly clear from the

record that Gentry knew that Presgraves was not to have contact

with her and her children. Both Gentry and Presgraves admitted

that he would hide in the woods behind her apartment if a

caseworker or social worker arrived.

Despite receiving support through abuse counseling, in-home

parenting services, and additional services, Gentry maintained

her secretive relationship with Presgraves. While Gentry

5 completed the steps required in the Social Services' plan,

attended weekly support groups, and appeared to be cooperating,

she was violating the plan and placing herself and her child at

risk for continued abuse by residing with Presgraves.

The child was placed in foster care because Gentry was

unable to keep her safe. While the evidence does not indicate

that the child was physically harmed during the time Gentry and

Presgraves were secretly reestablishing their relationship, the

record demonstrates that Presgraves threatened and abused

Gentry's older daughter. The trial court found that Gentry "was

unable or unwilling to remove herself from the abusive

relationship with [Presgraves] and actively sought to conceal her

on-going relationship with [Presgraves] from the case workers."

The trial court found that Social Services established by clear

and convincing evidence that it was in the child's best interests

to terminate Gentry's parental rights because Gentry had been

unwilling or unable to stay out of a relationship which was

demonstrably abusive to herself and her children. This finding

was not plainly wrong. Code § 16.1-283(C)

The trial court found, by clear and convincing evidence,

that it was in the best interests of the child to terminate

Gentry's parental rights because Gentry had been unwilling or

unable, without good cause and for a period exceeding twelve

months, to remedy the conditions which led to the child's foster

6 care placement, notwithstanding the "reasonable and appropriate

efforts" of Social Services. See Code § 16.1-283(C)(2). The

trial court also found that Social Services presented prima facie

evidence of the subsection (C)(2) conditions by proving that

Gentry, without good cause, failed to make reasonable progress

towards the elimination of the conditions which led to the

child's foster care placement in accordance with a

jointly-designed foster care plan. See Code § 16.1-283(C)(3)(b). It is uncontested that Gentry received appropriate

rehabilitative and support services through Social Services.

Nevertheless, despite repeatedly stating her resolve to avoid

Presgraves, repeatedly denying to Social Services and her

counselors that she was continuing the relationship, and

repeatedly being told of the consequences, Gentry resumed her

relationship with Presgraves. From December 1994, when,

according to her testimony, Gentry wanted to break up with

Presgraves, until September 1996, Gentry continued to turn to

Presgraves when the opportunity arose. Gentry's failure to end

the relationship demonstrated that she was "unable to make

reasonable progress towards the elimination of the conditions

which led to the child's foster care placement."

Gentry contends that Social Services failed to adequately

inform her that she faced the termination of her parental rights

if she failed to satisfy the terms of her agreement with Social

Services. That claim is without support. The record reflects

7 that Gentry was informed that she faced termination of her

parental rights. Gentry's testimony established that she knew

Social Services could "take" her children away if she failed to

follow through on her responsibilities under the agreement.

Despite all the counseling, therapy, and support aimed at

alerting Gentry to the seriousness of her situation and the risks

faced by herself and her children, Gentry asserts that it took

the actual termination order for her to realize the consequences

of her action. Her child should not bear the burden of Gentry's

unwillingness or inability to recognize the seriousness of the

situation. "It 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 Social

Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990).

Use of Less Drastic Alternatives

Gentry contends that the trial court failed to consider less

drastic alternatives to termination of her parental rights. See

Code § 16.1-278.2 "Those remedies, which merely effect 'a

transitory change in the child's custodial status . . . without

affecting other parental rights,' are specifically 'designed for

the case of a parent who shows extenuating circumstances and

demonstrates [her] potential for rehabilitation as a fit

parent.'" Edwards v. County of Arlington, 5 Va. App. 294, 312-14

S.E.2d 644, 654-55 (1987) (citation omitted).

8 The record demonstrates that Social Services explored

placement with other relatives, but found such placement to be

unavailable or unadvisable. The trial court's decision not to

place the child with other relatives is fully supported by the

evidence.

The trial court did not find convincing Gentry's stated

intention to avoid abusive relationships in the future. Her past

behavior did not demonstrate a strong potential for

rehabilitation. We must rely on the inherent credibility

determinations which underlie the trial court's decision, as it

heard and saw the witnesses testify. The record demonstrates

that the trial court considered less drastic alternatives, and we

find no error in the trial court's decision to terminate Gentry's

parental rights. Accordingly, the decision of the circuit court is summarily

affirmed.