Tammy Lynn Cook v. Roanoke City DSS

• Court: Court of Appeals of Virginia
• Decided: July 3, 2001
• Docket: 2930003
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Clements and Agee Argued at Salem, Virginia

TAMMY LYNN COOK MEMORANDUM OPINION * BY v. Record No. 2930-00-3 JUDGE G. STEVEN AGEE JULY 3, 2001 ROANOKE CITY DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE Jonathan M. Apgar, Judge

(Onzlee Ware; Onzlee Ware & Associates, on brief), for appellant. Appellant submitting on brief.

Carolyn H. Furrow, Assistant City Attorney (William M. Hackworth, City Attorney, on brief), for appellee.

Tammy Lynn Cook (mother) appeals from a decision

terminating her residual parental rights to her two children on

petition by the Roanoke City Department of Social Services (DSS)

in the City of Roanoke Circuit Court. She contends (1) the

trial court terminated her rights pursuant to Code § 16.1-283(B)

without a finding that either of her children were abused or

neglected and (2) the evidence was insufficient to sustain a

finding that her rights should be terminated. We disagree and

affirm the trial court's decision.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, only those facts necessary to a disposition of this

appeal are recited.

"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 County Dep't of Human Dev., 13 Va.

App. 123, 128, 409 S.E.2d 460, 463 (1991). "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." Farley v. Farley, 9 Va. App. 326, 328,

387 S.E.2d 794, 795 (1990). On appeal, we presume that the

trial court "thoroughly weighed all the evidence, considered the

statutory requirements, and made its determination based on the

child's best interests." Id. at 329, 387 S.E.2d at 796.

Furthermore, "[w]here, as here, the trial court heard the

evidence ore tenus, its finding is entitled to great weight and

will not be disturbed on appeal unless plainly wrong or without

evidence to support it." Martin v. Pittsylvania County Dep't of

Social Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986).

Code § 16.1-283 establishes the procedures and grounds by

which a trial court may order the termination of residual

parental rights. Pursuant to Code § 16.1-283(B), the trial

court may terminate the residual parental rights of a parent of

- 2 - a child who has been found by the trial court to be neglected or

abused and placed in foster care based upon clear and convincing

evidence that it is in the child's best interest and that

1. The neglect or abuse suffered by such child presented a serious and substantial threat to his life, health or development; and

2. It 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 Moreover, it is prima facie evidence of the

conditions set out in Code § 16.1-283(B)(2) if there is proof

that:

a. The parent or parents are suffering from a mental or emotional illness or mental deficiency of such severity that there is no reasonable expectation that such parent will be able to undertake responsibility for the care needed by the child in accordance with his age and stage of development; . . . or

* * * * * * * c. The parent or parents, without good cause, have not responded to or followed through with appropriate, available and reasonable rehabilitative efforts on the part of social, medical, mental health or other rehabilitative agencies designed to

1 DSS also requested the termination of mother's parental rights pursuant to Code § 16.1-283(C). However, before the trial court, DSS conceded it could not prevail under this subsection, and the trial court did not base its ruling on this subsection. We, therefore, do not address it.

- 3 - reduce, eliminate or prevent the neglect or abuse of the child.

Code § 16.1-283(B)(2)(a) and (c) (emphasis added).

On appeal, we view the evidence in the light most favorable

to DSS, the prevailing party below, and grant to that evidence

all reasonable inferences fairly deducible therefrom. Logan, 13

Va. App. at 128, 409 S.E.2d at 463. So viewed, the evidence

established that DSS received a referral for prevention services

upon the birth of mother's daughter in February 1996. DSS

became concerned for the child when it learned of mother's

history of mental health problems, her limited intellectual

function, her failure to consistently take her medication and

meet with her counselor at Blue Ridge Community Services. The

initial goal of DSS, under these circumstances, was to educate

mother and prevent abuse and neglect of the infant. This goal

was not met.

Mother was initially cooperative, but failed to follow

through with some counseling sessions, failed to take her

medication and became uncooperative. Mother was unable to

follow instructions given one-on-one to her on how to care for

the child and the home. For instance, the family lived in a

house with a broken window that allowed mosquitoes in to bite

the infant. DSS provided mother with medicine to treat the

infant's bites and medicine to keep the mosquitoes off the

infant. Mother used the treatment medicine as the preventive

- 4 - medicine. She also failed to take the infant to the Children's

Health Investment Partnership for health monitoring as

recommended by DSS. In addition, despite repeated one-on-one

instruction, even the most basic instructions such as how to mix

infant formula, had to be repeated constantly. Other

instructions such as prohibiting the family dog from defecating

and urinating in the house were ignored.

In September 1996, DSS discovered the child had a recent

cigarette burn above her right eye. Mother denied being aware

of the injury and then provided four different explanations for

how the burn happened. The child was removed from the home for

approximately five months, returned to the family for a week, on

the condition that mother not be left alone with the child, but

then was voluntarily placed with DSS by her father.

In April 1997, mother's son was born. A preliminary

protective order was entered for this child providing that

mother was to abstain from any offensive conduct against the

child, to cooperate with reasonable services offered to protect

the child's life and health, to allow DSS to enter the home, and

to refrain from acts of commission or omission which would tend

to endanger the child's life, health or normal development. DSS

reinitiated in-home services, but the son was removed from the

home upon his father's incarceration.

Mother was permitted visitation with her children while

they were in foster care; however, problems arose during this

- 5 - time. Mother took the children outside without coats and

without permission in the winter; she carried sharp objects

around the children; and she would be unable to assist the

infants in cleaning themselves without becoming frustrated and

crying. In addition, mother continued to disregard her doctor's

instructions, failed to take her medication, ceased attending

her counseling sessions and performed poorly in DSS recommended

parenting classes.

Mother's first assignment of error is that the trial court

made no finding that either child had been neglected or abused

as the first sentence of Code § 16.1-283(B) requires. Mother

cites two pages in the filed appendix where this assignment of

error was preserved in the trial court for appeal. However, our

review of the record finds no such argument being made or

otherwise brought before the trial judge. This argument is now

being raised for the first time on appeal. We will not consider

an issue so raised and find it barred under Rule 5A:18.

Moreover, the trial court's orders specifically recite

prior court commitments finding abuse or neglect for each child.

A court speaks through its orders, and we presume that these

orders accurately reflect what transpired. Waterfront Marine

Constr., Inc. v. North End 49ers, 251 Va. 417, 427 n.2, 468

S.E.2d 894, 900 n.2 (1996); Stamper v. Commonwealth, 220 Va.

260, 280-81, 257 S.E.2d 808, 822 (1979), cert. denied, 445 U.S.

972 (1980). The burden is on the party alleging an irregularity

- 6 - in a court proceeding to show affirmatively from the record that

the irregularity exists. See Hagood v. Commonwealth, 157 Va.

918, 929, 162 S.E. 10, 13 (1932). Mother has not met this

burden.

As to the sufficiency of the evidence issue, the trial

court found by clear and convincing evidence that termination

was in the children's best interests and that the neglect

suffered by the children

presented a serious and substantial threat to their life, health or development . . . . It 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 children's] safe return to [mother] within a reasonable period of time . . . . [Mother] is suffering from a mental or emotional illness or mental deficiency of such severity that there is no reasonable expectation that she will be able to undertake responsibility for the care needed by [the children] in accordance with their ages and stages of development.

We find that the evidence in this case supports the trial

court's findings. It is apparent from the record that mother is

unable to care for the young children as they were subjected to

unhealthy living arrangements, her daughter was not taken for

appropriate health care, and mother was unable to learn to care

for them despite repeated efforts to assist them. This neglect

presented a serious threat to the children's health and

development as contemplated by Code § 16.1-283(B)(1).

- 7 - Further, mother was unable or unwilling to remedy within a

reasonable time the conditions that led to the children's

placement in foster care, notwithstanding DSS's efforts to that

end. DSS demonstrated mother's continuous uncooperative and

reckless actions in handling her own mental health problems

since 1996 when her daughter was born. Mother did not rebut

this evidence. "Thus, there is prima facie evidence that it is

not reasonably likely that [mother's] conditions can be

substantially corrected or eliminated within a reasonable time."

Lowe v. Dept. of Public Welfare of the City of Richmond, 231 Va.

277, 282, 343 S.E.2d 70, 73 (1986). See also Code

§ 16.1-283(B)(2)(a). In addition, DSS demonstrated that mother,

despite assistance, refused to follow through with the

appropriate efforts and services designed to reduce, eliminate

or prevent the neglect to her children. Mother also failed to

rebut this evidence. This showing by DSS is also prima facie

evidence that mother is not reasonably likely to remedy the

neglectful conditions within a reasonable period of time. See

Code § 16.1-283(B)(2)(c).

Mother's daughter, now age five, has been continuously in

foster care since February 1997. Her son, now four, has been in

foster care since shortly after his birth in April 1997. These

years of foster care have been more than enough time for mother

to remedy the neglectful conditions to which she exposed her

children while in her care. Yet, mother has failed to do so and

- 8 - after all these years, it is evident from the record that mother

is unable to remedy the conditions "within a reasonable time."

The phrase, "within a reasonable time" is an important element of the statutory scheme. One of the goals of the Commonwealth . . . is to maintain the family structure in all possible circumstances. The Code recognizes, however, that there are circumstances in which this will not be possible. 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 [or her] responsibilities.

Kaywood v. Halifax Co. Dept. of Social Services, 10 Va. App.

535, 540, 394 S.E.2d 492, 495 (1990).

While the phrase "within a reasonable time" is not defined

by the statute, "its meaning depends upon the context and the

attendant circumstances." Id. Upon a review of the record, the

trial court was justified in finding that the children were not

likely to be returned to mother within a reasonable period of

time, if ever. It is clearly not in the children's best

interests for mother to maintain her residual parental rights as

her children would continue in foster care after all these years

with no evidence that mother will ever rectify the conditions

that posed harm to them.

Accordingly, we cannot say that the trial court's finding,

by clear and convincing evidence, that the conditions of

subsection (B) of Code § 16.1-283 have been established was

plainly wrong or without evidence to support it. We, therefore,

- 9 - affirm the trial court's decision to terminate mother's residual

parental rights.

Affirmed.

- 10 -