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WALKER v. CHESTERFIELD COUNTY DEPARTMENT OF SOCIAL SERVICES




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WALKER

v.

CHESTERFIELD COUNTY DEPARTMENT OF SOCIAL
SERVICES


COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Humphreys and Senior Judge Overton

Record No. 1175-03-2

CHARLES WALKER

v.

CHESTERFIELD COUNTY

DEPARTMENT OF SOCIAL SERVICES

 

MEMORANDUM OPINION[1]PER
CURIAM

OCTOBER 14, 2003

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY

Frederick G. Rockwell, III, Judge

(Aileen F. Tucker; Bowen, Champlin, Carr & Rockecharlie, on

brief), for appellant.

(Michael S. J. Chernau, Senior Assistant County Attorney, on
brief),

for appellee.

Charles Walker appeals a decision terminating his parental
rights to his son. Walker

contends the evidence was insufficient to support the
termination. 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

We view the evidence in the light most favorable to the
prevailing party below and grant

to it all reasonable inferences fairly deducible therefrom. See
Logan v. Fairfax County Dep’t of

Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991). So
viewed, the evidence

established Walker’s son was born on March 15, 1990. In 1995,
Walker was convicted of

murder and sentenced to death. He remains incarcerated awaiting
his execution.

The child’s mother is also in prison. When the mother was
imprisoned, she left the child

in the care of his maternal grandmother. When his grandmother
died in 1996, the child resided

with his maternal aunt and uncle until they petitioned to be
relieved of custody because they

were unable to manage his behavior. On October 25, 2000, the
Chesterfield County Department

of Social Services obtained custody of the child. The Department
implemented an initial foster

care plan of "return home" upon the expectation that
the child’s mother would be paroled from

prison in July 2001. The child was placed in a therapeutic
foster home in November 2000

because he was severely emotionally disturbed. Despite extensive
counseling and psychiatric

services, he continued to exhibit verbal and physical
aggression. He was hospitalized three times

in an effort to stabilize his behavior, and he was treated at
the Virginia Treatment Center for

Children for eight months in 2001. He has thrived since his
return to a therapeutic foster home.

His foster parents are prepared to adopt him.

Nothing in the record indicates that Walker has ever had any
relationship with his son or

that he has attempted to contact his son or plan for his son’s
care. In his ruling, the trial judge

cited Walker’s incarceration, his lack of contact with the
child, and the child’s need for structure

and stability.

ANALYSIS

In pertinent part, Code ? 16.1-283(C)(2) provides that
"[t]he residual parental rights of a

parent . . . of a child placed in foster care as a result of
court commitment . . . may be terminated

if the court finds, based upon clear and convincing evidence,
that it is in the best interests of the

child" and that the following conditions exist:

The parent or parents, without good cause, have been

unwilling or unable within a reasonable period of time not to

exceed twelve months from the date the child was placed in
foster

care to remedy substantially the conditions which led to or
required

continuation of the child’s foster care placement,
notwithstanding

the reasonable and appropriate efforts of social, medical,
mental

health or other rehabilitative agencies to such end. Proof that
the

parent or parents, without good cause, have failed or been
unable

to make substantial progress towards elimination of the
conditions

which led to or required continuation of the child’s foster care

placement in accordance with their obligations under and within

the time limits or goals set forth in a foster care plan filed
with the

court or any other plan jointly designed and agreed to by the
parent

or parents and a public or private social, medical, mental
health or

other rehabilitative agency shall constitute prima facie
evidence of

this condition. The court shall take into consideration the
prior

efforts of such agencies to rehabilitate the parent or parents
prior to

the placement of the child in foster care.

Because "’[r]easonable and appropriate’ efforts can only be
judged with reference to the

circumstances of a particular case," Ferguson v. Dep’t of
Soc. Servs., 14 Va. App. 333, 338, 417

S.E.2d 1, 4 (1992), we have held that the trial judge "must
determine what constitutes reasonable

and appropriate efforts given the facts before the court."
Id. at 338-39, 417 S.E.2d at 4.

Walker contends the Department failed to demonstrate that
terminating his parental rights

would be in the child’s best interest or that he was
"unwilling or unable" to remedy the conditions

which led to the child’s placement into foster care. He also
argues that the Department failed to

provide reasonable and appropriate services to assist him. The
trial judge found, however, that

the Department’s actions were reasonable under the circumstances
and that Walker’s

incarceration limited the agency’s capacity to remedy his
deficiencies as a parent.

In Ferguson, we held as follows:

[W]hile long-term incarceration does not, per se, authorize

termination of parental rights or negate the Department’s
obligation

to provide services, it is a valid and proper circumstance
which,

when combined with other evidence concerning the parent/child

relationship, can support a court’s finding by clear and
convincing

evidence that the best interests of the child will be served by

termination.

Id. at 340, 417 S.E.2d at 5. The evidence proved that Walker has
been incarcerated for most of

the child’s life. Furthermore, no evidence established that
Walker had contact with his child

during the period of incarceration. In addition, the record
contains expert testimony that the

child needed stability to ensure improved development.

The trial judge found that the Department had fulfilled its
duties under the statute. We

will not disturb this finding because the record indicates that
it was not plainly wrong or without

evidence to support it. Martin v. Pittsylvania County Dep’t of
Soc. Servs., 3 Va. App. 15, 20,

348 S.E.2d 13, 16 (1986). Thus, the record supports the trial
judge’s finding that the Department

proved by clear and convincing evidence that the best interests
of the child would be served by

terminating father’s parental rights pursuant to Code ?
16.1-283(C)(2).

Accordingly, we summarily affirm the decision. See Rule 5A:27.

Affirmed.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.


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