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the Virginia Court of Appeals.
R. W., et al.
CHESAPEAKE DEPARTMENT OF HUMAN SERVICES
COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
Record No. 1313-03-1
R. W. AND
CHESAPEAKE DEPARTMENT OF
NOVEMBER 25, 2003
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Frederick H. Creekmore, Judge
(James E. Short; Roy, Larsen, Romm & Lascara, P.C., on
(John E. Oliver, Deputy City Attorney, on brief), for appellee.
(Richard L. Buyrn, on brief), Guardian ad litem, for the
R.W. (father) and P.W.
(mother) (collectively "parents") appeal a decision of the trial court
terminating their parental rights to their two sons, R. and D.,
pursuant to Code ? 16.1-283(C)(2).
On appeal, parents contend the trial court erred by: (1) finding
the evidence was sufficient to
terminate their parental rights; (2) finding that the
termination of their parental rights was in the
children’s best interests; and (3) determining that R. was not
of the age of discretion pursuant to
Code ? 16.1-283(G). Upon reviewing the record and briefs of the
parties, we conclude
this appeal is without merit. Accordingly, we summarily affirm
the decision of the trial court. See
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).
R. was born in 1989, and D. was born in 1994. The children came
into the custody of the
Chesapeake Department of Human Services (CDHS) on January 28,
1999 upon petitions filed by
CDHS alleging that the children were abused and neglected by
their parents. The child protective
services unit had learned of R. earlier that month when staff at
Maryview Behavioral Health Center
reported to CDHS that R. had been admitted to the facility based
upon a report from parents that he
had threatened to kill himself and others, including his younger
brother. R. attacked his mother and
hospital staff during the intake process. Parents removed R.
from the hospital the next day despite
the fact that the hospital staff still considered him to be a
risk to himself and others. CDHS also
learned that R. had been hospitalized by his parents for several
days in 1998. At that time, parents
also removed R. from hospital care against the advice of
While in public school, R. displayed a pattern of aggressive
acting out and self-destructive
behaviors. He threw furniture, kicked and punched walls, banged
his head on furniture and cursed
in class. He was once physically restrained because of his
physical aggression. Parents blamed R.’s
behavioral problems on his teachers. Mother was often hostile
and belligerent with school staff,
screaming at them on the telephone or during meetings. Parents
rejected several placements for R.
in education programs designed to assist children with severe
behavioral problems. Instead they
insisted that R. be moved to another public school where the
same pattern of behavior was repeated.
At one point, an individual was assigned to R. for one-on-one
supervision, and R. physically
attacked this person. Meanwhile, parents were uncooperative and
openly hostile with school
officials and R. was eventually suspended from school.
In January 1999, a child protective services worker visited the
parents’ home. The home
was in "shambles" with clothes, partially eaten food,
and trash strewn on the floors. D. was very
dirty, and both boys had an odor about them. While the worker
tried to interview mother, R.
repeatedly interrupted the conversation, cursed, and threatened
to kill the worker, his mother and his
brother. Parents displayed no control over R.’s behavior. At
that time, they acknowledged R.’s
history of acting out, but stated that they were not going to
act on any of the recommendations from
school or mental health professionals because these
professionals had lied to them and had not been
helpful. Mother also indicated that the family had moved over
twenty times during the children’s
lives and had been involved with various mental health
When D. was four years old and was enrolled in pre-school, he
was not potty trained and the
school had to purchase diapers for him despite repeated requests
to parents to provide diapers.
School staff also reported that D. had poor hygiene and poor
social skills. Mother was hostile and
belligerent with D.’s school staff, and she refused to provide
information to them concerning D.’s
For the first eight months the children were in foster care,
parents declined to cooperate with
CDHS. They refused to give to CDHS immunization information
about the children and a medical
device to treat D.’s asthmatic condition. Parents refused to
provide information on where they
were living, whether they were employed, and whether they were
engaged in any of the services
ordered by the court. They refused to provide releases to enable
workers to contact their therapist.
They declined to participate in a parenting assessment at a
child abuse center and complained about
the staff at the facility where R. was residing.
R. resided in Maryview from January until March 1999. While
there, he was diagnosed
with bipolar disorder mixed with psychotic features,
post-traumatic stress disorder, and attention
deficit hyperactivity disorder. Psychological testing indicated
that he was depressed, had poor
emotional control, and had poorly developed psychological coping
systems. Other tests showed R.
responded to stimuli with aggression and he was not able to
function in a "normal" school
environment. R. has resided in various residential centers for
emotionally disturbed children since
he was removed from parents’ custody.
D. was placed in a foster home where he had difficulty adjusting
to the routine of family life.
In 1999, CDHS and parents agreed to a plan to attempt to return
D. to parents’ home. The in-home
services of the Barry Robinson Center (BRC) were engaged to
provide services to the family, to
supervise visits with D., and to assess the suitability of
parents’ home for safe placement of D.
there. Parents failed to cooperate with the in-home workers and
were hostile and angry towards
them. Mother denied that the family had any problems, and she
yelled at or ignored the service
workers. The in-home services workers saw a
"primitive" pattern of interaction between parents
and D., including limited communication, no
"limit-setting," and a "very low indication of
attachment." They also noted that parents failed to
adequately supervise D. or to be aware of his
safety needs. The in-home services program concluded that the
family home was "not a suitable
environment" for D. and that parents were "not in a
condition to receive him into the home."
In February 2000, the Chesapeake Juvenile and Domestic Relations
District Court (JDR
court) held a hearing on the abuse and neglect petition filed by
CDHS. The JDR court adjudged the
children to be abused and neglected, and it continued temporary
legal custody of the children with
CDHS. For several months prior to the hearing, parents had
refused to give CDHS their telephone
number, refused to cooperate with CDHS, and denied that they had
any "problems" to work on.
CDHS provided parents with a foster care plan, which listed
numerous matters that parents needed
to address in order to have the children returned to their
custody, including coming to an
understanding about their children’s conditions and needs,
demonstrating a capacity to interact
appropriately with others, and maintaining contact with CDHS.
In May 2000, parents provided information to CDHS concerning
father’s employment and
their home address. When a CDHS worker tried to visit the home,
mother refused to allow her
inside. CDHS also resumed supervised visits between parents and
D. at the offices of CDHS. The
visits were suspended when parents failed to comply with the
terms established for the visits and
were verbally abusive to the CDHS worker. The visits were then
scheduled to be held at the office
of D.’s therapist, but parents failed to follow through with
In 2000, Dr. Susan Garvey, a licensed clinical psychologist,
performed evaluations of
parents. Dr. Garvey diagnosed mother with "significant
psychopathology" which is chronic and
ingrained and which impairs her emotional, behavioral and
interpersonal functioning. Mother also
has numerous health problems. Dr. Garvey found that father
exhibited "significant clinical
psychopathology" that interfered with his functioning. Dr.
Garvey stated that father told her he
believed social services was conspiring to take their children
and that he and mother did nothing to
cause the children to be removed from the home. Dr. Garvey found
that both parents exhibited
paranoia and cognitive delusions concerning the removal of the
children from their home. She
opined that their prognosis for improvement is poor. She also
indicated that, because parents
believe they have done nothing wrong and that they are not part
of the problem, they are not
motivated to change.
Dr. Garvey observed D. interact with his parents. She saw an
between D. and both parents. D. maintained physical distance
from mother, and there was a lack of
spontaneity in their communication. D. played alone during most
of the half-hour visit. Based upon
her testing, observations and review of psychological
evaluations by Dr. Gerstle, a licensed clinical
psychologist who had worked with the family, Dr. Garvey
recommended that the children not be
returned to parents’ custody.
In 2001, the JDR court terminated parents’ parental rights and
awarded custody of the
children to CHDS with the authority to place them for adoption.
Parents appealed to the trial court,
which held several evidentiary hearings in 2002.
Pursuant to the trial court’s request, Dr. Garvey updated the
evaluation of the family that she
had conducted in 2000. Dr. Garvey again interviewed parents and
consulted their records with
other treating doctors and therapists. She consulted with Dr.
Gerstle, who agreed with Dr. Garvey’s
assessment of parents’ personality and parenting functioning.
However, Dr. Gerstle disagreed with
Dr. Garvey’s recommendation that the court terminate parental
rights. Dr. Gerstle opined that
parents need "intensive treatment" in order to become
appropriate parents. He believes parents
acknowledge their need for treatment and have become "less
intrusive" to their children over the
two-and-one-half years he had worked with them. However, Dr.
Gerstle also indicated that parents
had not improved in terms of taking responsibility for their
role in the family’s situation and they
continue to see themselves as victims of the courts and CDHS
concerning the removal of the
children from their home.
The BRC staff reported to Dr. Garvey that they had difficulties
with parents concerning
visitation with R. R. often became agitated and upset after the
visits, so the visits were
discontinued. Mother accused the BRC staff of inappropriate and
In Dr. Garvey’s latest interview with mother, she found mother
"more subdued" and in
better physical health. However, Dr. Garvey again saw evidence
of mother’s paranoid and
delusional thinking and "rigidity," which were the
bases for Dr. Garvey’s recommendation that
mother’s parental rights be terminated. Parents acknowledged
to Dr. Garvey that they would need
"transition assistance" if the children returned home,
but they continued to deny that they have any
problems that contributed to the removal of the children. Dr.
Garvey opined that parents continue to
have "severe difficulties" in their emotional and
interpersonal functioning that would render them
inappropriate parents to the children.
At the time of the trial court’s 2002 hearings, the children
had been in foster care for almost
four years. D. had been in foster care for almost one-half of
his life, and he was living in his fourth
placement, a therapeutic foster home. Early in his foster care
placement, D. exhibited problems
with aggression and an inability to follow instructions. He
requires a high level of structure and
supervision, but his behavior has improved while he has been in
the structured environment of the
therapeutic foster home.
At the time of the trial court hearings, R. was living at a
residential treatment center. Molly
Stoner, a licensed clinical social worker and treatment
administrator at R.’s residential placement
center, reported that R. has "a pretty significant
impairment with his cognitive functioning" and has
difficulty managing impulsivity and anger outbursts. R.’s
performance I.Q. is in the borderline
range of functioning, and he has "very little insight"
into how his actions affect others. R., who was
thirteen years old at the time of the trial court hearing,
expressed a desire to "get back" to his "whole
family." When asked why he wanted to return home, R. stated
he could get better care at home,
such as new clothes, food and a good bed. Stoner testified that
R. has the maturity level of a nine or
ten year old. Stoner also stated that her goal for R. is to
transition him to a foster home, but the
foster family would have to be experienced with children with
developmental delays, emotional
disturbances and significant impairments.
Mother testified that she has been working with Dr. Gerstle
since January 1999 and she
takes medications prescribed by a psychiatrist. She stated that
she was a "monster" in the past, but
she would like to work with CDHS to get her "life
back." She apologized for her past failures to
cooperate with CDHS, and she stated that she now recognizes that
she has problems. Mother
testified that she is in better control over her emotions, but
she needs more therapy and has "years to
go." Mother also stated that she would have to work with
the authorities in order to provide for the
children’s needs. Father acknowledged that parents had made
mistakes in the past, he plans to
continue in therapy, and he believes parents could work well
with CDHS in the future.
The guardian ad litem, who had been involved with the
family since January 1999,
recommended that the trial court terminate the parental rights
of both parents.
The trial court found by clear and convincing evidence that the
children were neglected by
parents prior to their removal from the home, causing the
infliction of "severe mental and
psychological injury" to the children. The court also ruled
that R. is not a person of discretion
pursuant to Code ? 16.1-283(G). The trial court found that it
was in the best interests of the
children to terminate the parental rights, and it found no just
cause for parents’ failure to remedy,
within the twelve-month period, the conditions leading to the
removal of the children or their failure
to cooperate with CDHS.
"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 Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986).
The trial court terminated parental rights to the children
pursuant to Code ? 16.1-283(C),
which provides in pertinent part:
The residual parental rights of a parent or parents of a child
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
* * * * * * *
2. 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
care to remedy substantially the conditions which led to or
continuation of the child’s foster care placement,
the reasonable and appropriate efforts of social, medical,
health or other rehabilitative agencies to such end. Proof that
parent or parents, without good cause, have failed or been
to make substantial progress towards elimination of the
which led to or required continuation of the child’s foster
placement in accordance with their obligations under and within
the time limits or goals set forth in a foster care plan filed
court or any other plan jointly designed and agreed to by the
or parents and a public or private social, medical, mental
other rehabilitative agency shall constitute prima facie
this condition. The court shall take into consideration the
efforts of such agencies to rehabilitate the parent or parents
the placement of the child in foster care.
The evidence, viewed in the light most favorable to CDHS, proved
by clear and convincing
evidence that: (1) CDHS made "reasonable and appropriate
efforts" to help parents remedy the
conditions "which led to or required continuation of the
[children’s] foster care placement" and (2)
parents, "without good cause" were "unwilling or
unable within a reasonable period of time not to
exceed twelve months" from the date of placement in foster
care, failed "to substantially remedy"
those conditions. Code ? 16.1-283(C)(2). For the most part,
parents did not cooperate with CDHS
over the almost four years the children have been in foster
care. Although they now say they
recognize that they contributed to the situation resulting in
the removal of the children, the evidence
shows that parents lack the skills and ability to meet the
specialized needs of the children. Indeed,
parents admitted that they will need a great deal of assistance
should the children be returned to their
Pursuant to Code ? 16.1-283(C)(2), CDHS presented prima
facie evidence that 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
children]’s foster care placement in
accordance with their obligations under and within the time
limits or goals set forth in [the] foster
care plan[s] filed with the court." Id. Moreover, parents
did not rebut that prima facie evidence.
Therefore, the evidentiary requirements of Code ?
16.1-283(C)(2) had been met, and the trial
court’s findings and judgment were not plainly wrong or
without evidence to support them.
In addition, the evidence supports the finding that the
termination is in the best interests of
the children. Evidence showed that D.’s behavior has improved
while he has been in a structured
environment and that he may be adopted by a family. R. continues
to need intensive residential
care, but the long term goal for him is to be placed in a foster
home. Over the four years since the
boys were placed in foster care, parents have demonstrated
little understanding of the needs of these
children. "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. Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394
S.E.2d 492, 495 (1990).
Last, the trial court did not err in finding that R. is not of
the age of discretion pursuant to
Code ? 16.1-283(G). The evidence showed that R. was thirteen
years old at the time of the hearing
and that he had the maturity level of a nine or ten year old.
His I.Q. is borderline functional, and he
has significant impairment of his cognitive functioning.
Accordingly, the evidence supports the trial
For these reasons, the decision of the trial court is summarily
Code ? 17.1-413, this opinion is not designated for publication.
We refer to
the parties by initials only to protect the identities of the children.