Home / Fulltext Opinions / Virginia Court of Appeals / BIVINS v. NEW KENT CTY. DEPT. OF SOCIAL SVCS.


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.




NOVEMBER 2, 1999

Record No. 0304-99-2





William H. Shaw, III, Judge

Present: Judges Elder, Lemons and Senior Judge

Argued at Richmond, Virginia


(Rhonda L. Earhart, on brief), for appellant.
Appellant submitting on brief.

(James E. Cornwell, Jr.; C. Michael DeCamps;
Sands, Anderson, Marks & Miller, on brief), for appellee.
Appellee submitting on brief.

Linda Bivins (Bivins) appeals the decision of
the circuit court terminating her parental rights to her
children, Adam and Elisabeth Sewell. Bivins contends that the
record contains no indication that the New Kent County Department
of Social Services (DSS) filed with the juvenile and domestic
relations district court a foster care plan meeting the
requirements of Code ? 16.1-281(B). Bivins also contends
that DSS failed to present clear and convincing evidence
sufficient under Code ? 16.1-283 to terminate her parental
rights. We find that the contentions Bivins raised on appeal are
without merit, and we affirm the decision of the trial court.

"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 Development
, 13 Va. App. 123, 128, 409 S.E.2d 460, 463

"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."
The trial court’s judgment, "when based on evidence heard ore
tenus, will not be disturbed on appeal unless plainly
wrong or without evidence to support it."

Id. (citations omitted).

Both children are special needs children with
cerebral palsy. Elisabeth, who was born prematurely after Bivins
stabbed herself three times in the vagina, weighed three pounds
at birth. At the time she came into foster care, Elisabeth was
developmentally delayed and mentally retarded. She suffered from
extremely poor hygiene. She was a victim of at least one instance
of sexual abuse by her father, Dennis Sewell (Sewell). Elisabeth
had difficulty sleeping, with nightmares, night wanderings, and

At birth, Adam weighed two and one-half pounds
and tested positive for cocaine. At age four, when he was placed
in foster care, he weighed twenty-two pounds, and could not
speak, walk, or eat. His dental hygiene was so poor that he had
fourteen teeth extracted.

At the time the children were placed in foster
care in December 1995, Bivins was incarcerated on charges of
prescription drug fraud. The children were then in the custody of
their father and his parents, John and Rose Murdock.

Both children made great strides while in
foster care. At the time of the termination hearing, each
demonstrated greater ability to function and to care for
themselves. Both children continued to face substantial medical
and developmental challenges in the future.

Foster Care Plan

Code ? 16.1-281 requires social services
agencies such as DSS to develop foster care plans detailing the
services to be offered children placed in their legal custody.
Subsection (B) provides, in pertinent part, that "[i]f
consistent with the child’s health and safety, the plan shall be
designed to support reasonable efforts which lead to the return
of the child to his parents or other prior custodians within the
shortest practicable time which shall be specified in the
plan." Bivins contends that the record fails to demonstrate
that a foster care plan meeting the statutory requirements of
Code ? 16.1-281 was filed with the juvenile and domestic
relations district court. Specifically, although Bivins admits
that a foster care plan dated August 4, 1998 was prepared, she
contends that an earlier plan was the plan documenting
termination of her parental rights as being in the best interests
of the children.

Bivins concedes that the plans were admitted
into the juvenile and domestic relations district court record
and DSS was not required to refile them in the circuit court
during the trial de novo. See Todaro v.
Alexandria Dep’t of Social Servs.
, 226 Va. 307, 309 S.E.2d
303 (1983). The transcript of the circuit court hearing
demonstrates that the foster care plans were admitted into
evidence before the circuit court by stipulation and without
objection. The record on appeal contains the plans. The trial
court approved the plan "filed herein by [DSS]," and
its order is presumed to be a correct recitation of the facts. We
find no merit in this challenge to the order approving the foster
care plans.

Sufficiency of the Evidence

Bivins contends that the trial court erred when
it found that DSS presented clear and convincing evidence
sufficient to support termination of her parental rights pursuant
to Code ? 16.1-283. "Code ? 16.1-283 embodies ‘the
statutory scheme for the . . . termination of residual parental
rights in this Commonwealth’ [which] . . . ‘provides detailed
procedures designed to protect the rights of the parents and
their child,’ balancing their interests while seeking to preserve
the family." Lecky v. Reed, 20 Va. App. 306, 311, 456
S.E.2d 538, 540 (1995) (citations omitted). We find no error.

The trial court found that clear and convincing
evidence supported the termination of Bivins’ parental rights
pursuant to Code ? 16.1-283(B). Code ? 16.1-283(B)(1)
and (2) provide, in pertinent part, that the parental rights of
parents of a child placed in foster care after being found by a
court to be neglected or abused may be terminated if the court
finds that termination is in the best interests of the child and
finds clear and convincing evidence 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. In making this determination, the
court shall take into consideration the efforts made to
rehabilitate the parent or parents by any public or private
social, medical, mental health or other rehabilitative
agencies prior to the child’s initial placement in foster

The trial court also found that DSS presented
sufficient evidence under Code ? 16.1-283(C) to terminate
Bivins’ parental rights. Under Code ? 16.1-283(C)(2), the
parental rights of a child placed in foster care may be
terminated if the court finds by clear and convincing evidence
that it is in the best interests of the child and that:

2. The parent . . ., without good cause,
[has] been unwilling or unable within a reasonable period 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.

The evidence established that the children were
placed in foster care in 1995, while Bivins was incarcerated and
the children were in the custody of Sewell and the Murdocks. The
trial court reviewed the evidence based upon the steps Bivins had
taken to satisfy her responsibilities under the foster care plan
prepared after her release from prison in January 1997. Pat
Woods, the DSS social worker, testified that DSS made
arrangements for Bivins to have visitation with the children,
kept her informed of doctors’ appointments and school meetings,
and provided a contract worker to assist Bivins with parenting
skills during visitation. Woods testified that, despite the
requirements set out by court order, Bivins failed to file a
psychological assessment with DSS or to cooperate with the home
study and background check on her fianc?.

At trial, Bivins admitted that she had problems
with drug abuse, particularly abuse of prescription painkillers.
She admitted that a March 1998 urine test revealed evidence of
drug use, but testified that she was undergoing drug counseling.
While she admitted that she attended only some of the children’s
medical appointments and did not attend any meetings at school,
Bivins testified that she lived too far away to attend those
meetings regularly. She also testified that transportation and
finances prevented her from complying with some of her
responsibilities under the foster care plan. Bivins said that she
was sometimes late for visitation because it was impossible to
get to New Kent from Norfolk for a 9:00 visitation on Saturdays
due to traffic. Sometimes, their car would break down and they
needed to rent one. She was out of work for over a year as a
result of a work-related injury, and her fianc? also lost his
employment. She would not call DSS very often because it was too
expensive to make the long distance call. She also refused to pay
the $15 necessary to complete the background check of her fianc?
because they did not have the money. Bivins indicated at trial
that she would gladly pay for the background check now and would
be willing to move from Norfolk to New Kent.

While Bivins contends that DSS failed to
provide her with sufficient services to allow the children to
return to her, the record supports the trial court’s finding that
Bivins failed to substantially correct the conditions which led
to the children’s foster care placement despite DSS’s reasonable
rehabilitative efforts. It is true that Bivins completed some
parenting and anger control classes while in prison. However, the
evidence indicated that she failed to implement what she had
learned into her dealings with the children. Nancy Geary,
Elisabeth’s therapist, indicated that Elisabeth became upset
after visitation with Bivins and complained that Bivins
"smacked" her in the face. Significantly, Geary noted
that Elisabeth changed from wanting to be with Bivins to not
wanting to be with her.

That’s because of the lack of parent-child
relationship. That’s not necessarily the lack of contact. The
contact that she did have was not successful, was not promoting
toward a loving relationship.

Geary also noted that Bivins failed to follow
through on Geary’s offers of assistance or her recommendations
that Bivins take a parenting class, receive psychological
assessment, or have individual counseling. Bivins also threatened
her following a previous court hearing.

Tammy Bays, the contract worker supervising the
visitations, testified that Bivins was often frustrated dealing
with the children and focused on herself rather than attending to
the needs of the children. Bivins lacked an understanding of the
severity of her children’s problems and, lacking that
understanding, failed to provide the parenting skills necessary
to assist the children.

While Bivins indicated her willingness in the
future to live closer to the children, she made no effort to do
so in the past despite her repeated complaints that the distance
made it impossible for her to attend the children’s medical
appointments, educational planning sessions, or arrive on time
for visitation. "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 [her] responsibilities." Kaywood v. Halifax County Dep’t of
Social Servs.
, 10 Va. App. 535, 540, 394 S.E.2d 492, 495
(1990). The trial court was not required to place more
credibility in her proposed plans for the future than warranted
by her actions in the past. Moreover, other evidence demonstrated
that increased contact, without an improvement in Bivins’
parenting and anger management skills, would not be in the
children’s best interests.

Evidence in the record fully supports the
findings of the trial court that DSS presented clear and
convincing evidence sufficient under Code ? 16.1-283(B) and
(C) to terminate Bivins’ parental rights to Adam and Elisabeth.

Accordingly, the decision of the circuit court
is affirmed.



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