Virginia Lawyers Weekly VA Lawyers Weekly
The Court of Appeals upholds termination of a mother’s parental rights to her three children, a decision supported by mother’s history of substance abuse and the prior removal of the children from the home.
After finding that father abused and neglected A. and that mother neglected A., the trial court found that twins E. and W. were in danger of death, disfigurement or impairment of bodily or mental function at the hands of their parents. The trial court referred to the abuse and neglect of A. and the parents’ history with the trial court pertaining to the children, including a previous removal of the children from the home.
We have previously upheld a trial court’s abused or neglected determination based on a parent’s history and treatment of other children. Here, we find the trial court did not err, as a matter of law, in basing its determination that E. and W. were abused or neglected on the parents’ history before the court and the abuse and neglect of A. Ample facts support the trial court determination, because an unsafe environment existed for all three children, even viewing mother in isolation from father. It cannot be reasonably disputed that mother’s continued drug use created an unsafe environment for all three children. Mother’s substance abuse problems led to the first removal of all three children and mother admitted she smoked marijuana after the department removed the children the second time.
Also, the mother’s failure to adequately address A.’s medical needs supported the conclusion that mother created an unsafe environment for all three children. The pediatrician testified she expressed concerns to mother in November 2007 about A.’s weight and malnourishment, yet mother allowed six months to go by before A. saw the doctor again in a visit brought about by a separate incident threatening A.’s health and safety. On that visit, the doctor admitted A. to the hospital for a week.
Finally, mother’s inability to acknowledge the physical abuse father inflicted on A. created a patently unsafe environment for all three children. Mother was attempting to conceal information for A.’s doctors when he was admitted to the hospital again in later April. She repeatedly testified she did not know how A. had sustained his brain injuries, but she had not hit or shaken A. and refused to believe father had caused the injuries. Yet, mother admitted she and father had gotten into a physical altercation that required police involvement and led to charges against father.
Based on the plain language of Va. Code § 16.1-228(1), the trial court’s opinion, our decision in Jenkins v. Winchester Dep’t of Soc. Servs., 12 Va. App. 1178 (1991), and the record evidence supporting the trial court decision, we find no merit in mother’s assignment of error in this issue.
We also affirm the finding that E. and W. suffered from abuse or neglect that presented a serious and substantial threat to their lives, health and development, based on mother’s continued substance abuse and her history with the department and the court.
Finally, this court rejects mother’s claim that there was not sufficient evidence that mother could not remedy the offending conditions in a reasonable period of time.
Termination of parental rights affirmed.
Concurrence
Petty, J.: I concur in all but section III.A. of the majority opinion. I decline to join section III.A. because I believe it is unnecessary to analyze the trial court’s Dec. 9, 2009, findings in this case.
In father’s parallel case [VLW 012-7-001], we found the trial court’s findings in its termination decision – as distinct from its prior abused or neglected determination on Dec. 1, 2009 – did indeed indicate that it held the department to that higher standard; and the department satisfied that burden. The trial court expressly stated in its final termination orders for E. and W. that it found by clear and convincing evidence that E. and W. were in danger of death, disfigurement or bodily or mental impairment at the hands of their parents by reason of the abuse and neglect of their sibling A. Since this satisfies the definition of an abused or neglected child under Code § 16.1-228, this finding is the finding that properly supports the trial court’s ultimate decision to terminate mother’s parental rights. Any prior finding under a lesser burden of proof is irrelevant to an evaluation of the trial court’s termination decision and need not be addressed.
Farrell v. Warren County Dep’t of Soc. Servs. (Alston) No. 1872-10-4, Jan. 10, 2012; Warren County Cir.Ct. (Hupp) Howard J. Manheimer for appellant; Neal T. Knudsen for appellee; Thomas H. Sayre, GAL. VLW 012-7-002, 31 pp.
