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STERGIOU v. FREDERICK COUNTY DEPARTMENT OF SOCIAL SERVICES



NOTICE: The opinions posted here are
subject to formal revision. If you find a typographical error or
other formal error, please notify the Virginia Court of Appeals.


STERGIOU

v.

FREDERICK COUNTY
DEPARTMENT OF SOCIAL SERVICES


MARCH 21, 2000

Record No. 0156-99-4

MARCUS STERGIOU

v.

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.

Present: Judges Elder, Annunziata and Lemons[1]

Argued at Alexandria, Virginia


MEMORANDUM OPINION [2]
BY JUDGE ROSEMARIE ANNUNZIATA

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, 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 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 good cause, to communicate with the children for a period
of twelve months.
[3]

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). 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.
[4]
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.

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 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, 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.

 

FOOTNOTES:

[1] Justice Lemons participated in
the hearing and decision of this case prior to his investiture as
a Justice of the Supreme Court of Virginia.

[2] Pursuant to Code
? 17.1-413, recodifying Code ? 17-116.010, this
opinion is not designated for publication.

[3] 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] 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.

 

 

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