Home / Fulltext Opinions / Virginia Court of Appeals / HOWARD v. CHARLOTTESVILLE DEPT. OF SOCIAL SERVICES






MAY 16, 2000

Record No. 1275-99-2





Edward L. Hogshire, Judge

Present: Judges Elder, Bray and Bumgardner

Argued at Richmond, Virginia

Llezelle Agustin Dugger (Carmel, Nelson &
Dugger, PLC, on brief), for appellant.

Lisa R. Kelley, Deputy City Attorney (Office of
the Charlottesville City Attorney, on brief), for appellee.


On May 4, 1999 the trial court terminated Sheba
Benille Howard’s residual parental rights in her two-year-old
daughter, Rhalausia Nashe Howard, pursuant to Code
? 16.1-283(C). The mother argues the trial court erred in
finding the evidence sufficient to terminate her rights. For the
following reason, we affirm.

The child was born September 25, 1996, when the
mother was nineteen years old. In August 1997, the mother left
the child with her friend Brenda Shifflett. At the time, the
mother was unemployed and receiving financial assistance (ADC).
The mother told Shifflett she was going to Richmond for a hearing
on shoplifting charges against her. The mother went into hiding.
She gave up her apartment without notifying her landlord and
moved her belongings to her father’s house. The mother did not
turn herself in and was a fugitive from the law. The mother never
suggested a plan for retrieving the child. Shifflett notified DSS
of the mother’s failure to maintain contact with the child and
her failure to leave sufficient diapers, formula, or money for
her care.

During August 1997, the mother’s father also
took care of the child, but was either unable or unwilling to
continue doing so. On August 26, 1997, he brought the mother to
DSS and she signed an entrustment agreement giving DSS custody of
the child. The juvenile and domestic relations district court
approved the agreement. The child was treated at the emergency
room for a virus and malnutrition. At eleven months old she had
only been given formula, which was not age appropriate.

Under the entrustment agreement, the mother
agreed to resolve her legal status as a fugitive. On September
26, 1997, DSS filed a foster care plan with the goal of returning
the child to the mother. Under this plan, the mother was to show
an ability to provide the child with appropriate and stable care,
accept responsibility for her prior legal acts, take parenting
and nutrition classes, maintain contact with the child once a
week, obtain a substance abuse assessment and follow through with
recommended treatment, provide monthly child support, and
maintain close contact with DSS. Between August 1997 and January
1998, DSS made reasonable efforts to contact the mother.

The mother did not resolve her fugitive status
and did not contact her child or DSS until January 1998. At that
time, she informed DSS she was arrested in October 1997 for arson
and had been incarcerated since then. The mother was convicted of
setting fire to her mother’s porch while her mother was inside
the house. DSS met with the mother, gave her a copy of the 1997
foster care service plan, and outlined her obligations under that
plan. When DSS advised the mother of the substance abuse
assessment, the mother denied she needed this service.

A foster care review plan was filed April 8,
1998. This plan also had the goal of returning the child to the
mother. Since January, the mother had sent two letters to the
child. The mother advised DSS that she was incarcerated for
Charlottesville offenses but noted that she had pending charges
in Albemarle and Chesterfield counties. DSS did not know what the
pending charges were or how long the mother might be
incarcerated. Under the review plan, the mother was to write to
the child every two weeks, maintain monthly contact with DSS to
advise her legal status and length of her incarceration, and to
document her attempts to obtain the services required by the 1997
foster care plan.

In May 1998, the mother was convicted of felony
possession of cocaine on November 17, 1997, while she was
incarcerated. The court sentenced her to ten years with all but
six months suspended. She was to be on good behavior for ten
years and would be on supervised probation for a year upon her

DSS filed a third plan in August 1998 with the
goal of adoption. The mother failed to obtain substance abuse
services, or participate in parenting or nutrition classes during
her almost two-year incarceration. Since January, the mother had
written only four letters to the child. While she did maintain
fairly regular contact with DSS, the mother was unable to offer a
definite release date. The juvenile and domestic relations
district court terminated the mother’s residual parental rights
in the child on January 25, 1999. The mother appealed.

The trial court held a de novo
trial on April 19, 1999. The mother testified that since January
1999, she had taken one anger management class. Nonetheless, she
was involved in an altercation with another inmate in March 1999
and at the time of the hearing was still in solitary confinement.
Despite her convictions, the mother claimed that she was guilty
of neither the arson nor the possession offenses. While
incarcerated, the mother had parenting and life skills management
classes, and narcotics anonymous, alcoholics anonymous, and
substance abuse and counseling services available to her. While
the mother testified she put herself on the wait list for several
classes in March 1999, she had not obtained the services DSS
required under the 1997 plan. The mother anticipated a release
date of April 1999 and testified she was willing to follow up on
required services after that time.

On May 5, 1999, the trial court found that
termination of the mother’s residual parental rights was in the
child’s best interest under Code ? 16.1-283(C). The trial
court concluded that the mother failed to provide or
substantially plan for the child’s future "for a period
exceeding six months" after her placement in foster care;
failed to remedy substantially within a reasonable period of time
the conditions which led to the child’s placement; and failed to
make substantial progress toward eliminating the conditions which
led to that placement in accordance with her obligations under
DSS’s plans. The mother argues the trial court erred in finding
the evidence sufficient to terminate her residual parental

Residual parental rights may be terminated if
it is in the child’s best interest and the parent has not
remedied substantially the conditions that led to their foster
care placement within one year of their placement. See
Code ? 16.1-283(C)(2). The child’s best interest is the
paramount concern. "On review, ‘[a] trial court is presumed
to have thoroughly weighed all the evidence, considered the
statutory requirements, and made its determination based on the
child’s best interests.’" Logan v. Fairfax County Dep’t
of Human Dev.
, 13 Va. App. 123, 128, 409 S.E.2d 460, 463
(1991) (citations omitted). Where the trial court hears the
evidence ore tenus, its decision is entitled to
great weight and will not be disturbed on appeal unless plainly
wrong or without evidence to support it. See Lowe v.
Dep’t of Pub. Welfare
, 231 Va. 277, 282, 343 S.E.2d 70, 73

The evidence established that the mother was
not living with the child in August 1997 when she gave DSS
custody. At that time, she was unemployed, had never worked for
more than a few months at a time, received public assistance,
abandoned her housing, and was a fugitive from the police. From
August 1997 to January 1998, the mother failed to provide for the
child and failed to maintain contact with her or with DSS. The
mother’s failure to turn herself in violated the entrustment

DSS directed the mother to obtain a substance
abuse evaluation and take parenting classes. It also required her
to show that she could provide the child with an appropriate and
stable home. The mother was apprised of these obligations in
January 1998. Despite the availability of resources and services,
the mother had only completed one anger management class by April
1999. DSS was appropriately concerned with returning the child to
the mother since she was subject to a ten-year suspended sentence
conditioned upon good behavior. The mother did not accept
responsibility for her actions while she was incarcerated and had
no plans for caring for herself, let alone the child, upon her
release. During her incarceration, she was convicted of
possession of cocaine and placed in solitary confinement for
fighting with another inmate. Additionally, in April 1999 the
child was almost three years old and had lived with her mother
for less than a year.

We conclude that there is clear and convincing
evidence to support the trial court’s finding that the mother has
been unwilling or unable to remedy the conditions that led to the
child’s foster care placement. Accordingly, we affirm the trial
court’s judgment.



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