Opinion
Record No. 2319-92-4 Record No. 0366-93-4
August 3, 1993
FROM THE CIRCUIT COURT OF WARREN COUNTY JOHN E. WETSEL, JR., JUDGE.
(Carter B. Foulds, on brief), for appellant Christopher Bell.
(Thomas D. Logie, on brief), for appellant Candie Jean Bell.
(Douglas W. Napier; Napier, Napier Silek, on brief), for appellee.
Present: Judges Barrow, Koontz and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and briefs of the parties, we conclude that these appeals are without merit. Accordingly, we affirm the decisions of the circuit court. Rule 5A:27. As the parties are familiar with the facts of these cases, we recite them only as necessary to explain our decisions.
I.
Candie Bell ("mother") and Christopher Bell ("father") appeal from a circuit court order terminating their respective residual parental rights to their daughter Crystal. "Where, as here, the court hears 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 Social Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986).
The circuit court found by clear and convincing evidence that the requirements of Code § 16.1-283(B) were satisfied. That section states, in pertinent part, as follows:
Although not the articulated basis for its decision terminating the Bells' parental rights, the trial court noted that the evidence also satisfied the requirements of Code § 16.1-283(C).
The residual parental rights of a parent or parents of a child found by the court to be neglected or abused and placed in foster care as a result of (i) 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 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.
Under subsection § 16.1-283(B)(2)(C), proof that the parents, without good cause, have not "responded to or followed through with appropriate, available and reasonable rehabilitative efforts" designed to "reduce, eliminate or prevent" the neglect or abuse constitutes prima facie evidence that the conditions have not been substantially corrected to allow the child's return. "In determining that termination was warranted under Code § 16.1-283, the trial count is bound to consider the best interests of the child." Helen W. v. Fairfax County Dep't of Human Development, 12 Va. App. 877, 886, 407 S.E.2d 25, 30 (1991).
II.
Mother contends that the circuit court committed error in terminating her parental rights because the Department of Social Services ("DSS") did not continue to work to return Crystal to her following May 8, 1991. She alleges DSS refused her requests for assistance and services. Mother also contends that DSS failed to show by clear and convincing evidence that the conditions which led to her daughter's removal had not been or could not be remedied within a reasonable period of time. Finally, mother assigns error to the admission into evidence of her conviction for interfering with a worker of the Department.
In the Final Decree Terminating Parental Rights, the trial court summarized the evidence as follows:
The Mother's chronic unemployment, personal disinclination and ineptitude for proper parenting, and her penchant for an immoral, parasitic lifestyle, which were the original conditions contributing to the removal of the children[,] remain substantially unchanged.
The record supports that finding. DSS provided mother with extensive services and support, including parenting skill classes, individual counseling, substance abuse counseling and financial services. Despite those services, the trial court found mother's lifestyle and parental skills posed "a serious and substantial threat" to the health and development of her daughter, and precipitated the physical abuse of her daughter.
Mother's behavior during the time she regained custody of her daughter demonstrated that she was unable or unwilling to remedy the conditions which had caused her daughter's placement in foster care. There was no need for DSS to create a new foster care plan, as the issues remained the same. Mother refused to follow through with counseling and psychiatric evaluation recommended by the Department. Moreover, mother rejected any responsibility for the abuse her daughter suffered at the hands of the convicted felon with whom they were living, and indicated she neither needed nor would seek any type of treatment or counseling. DSS was not required to "force its services upon an unwilling or disinterested parent." Barkey v. Commonwealth, 2 Va. App. 662, 670, 347 S.E.2d 188, 192 (1986) (citing Harris v. Lynchburg Div. of Social Servs., 223 Va. 235, 243, 288 S.E.2d 410, 415 (1982)).
Moreover, the trial court did not err in admitting into evidence mother's conviction arising from her flight with Crystal from the Warren Memorial Hospital at the time her daughter was treated for the bruises and abrasions resulting from physical abuse. That incident was relevant to the matter before the trial court. However, if we were to assume that the evidence was inadmissible, its admission would be harmless in light of the other evidence supporting the court's decision. "In short, error which does not injuriously affect the interest of the party complaining is not reversible." Jenkins v. Winchester Dep't of Social Servs., 12 Va. App. 1178, 1186, 409 S.E.2d 16, 21 (1991) (citing Rosenberger v. Commonwealth, 159 Va. 953, 166 S.E. 464 (1932)).
Mother, through her behavior, has made clear that she has no intention of correcting or eliminating the conditions which resulted in Crystal's abuse and neglect. Rather, she maintains no stable residence or employment, choosing instead to be supported by whatever man she is living with at the moment. Accordingly, the court did not err in finding that the best interests of the child mandated termination.
III.
Father contends that the circuit court erred in finding that DSS had made "reasonable and appropriate efforts" to provide rehabilitative services to him, and in finding that clear and convincing evidence established that the father had, without good cause, failed to remedy the conditions which led to foster care placement of his daughter.
The trial court found that Crystal was neglected while in the custody of father and that father "made no appreciable effort to comply with the original foster care plan." The record supports this finding.
It is not the fact that father is incarcerated that is determinative. This Court has declined to adopt a per se rule that imprisonment demonstrates the absence of good cause in failing to correct the conditions which led to the foster care placement. See Cain v. Roanoke Dep't of Social Servs., 12 Va. App. 42, 402 S.E.2d 682 (1991).
In this case, however, there is more than the fact that father is imprisoned which provides clear and convincing evidence supporting the circuit court's decision. Father failed to provide for his daughter's needs prior to his current incarceration. Upon his release from prison, father failed to take the steps required under the terms of the original foster care plan: he did not seek substance abuse counseling, enroll in a parenting skills course, maintain a residence, obtain stable employment, or, most significantly, avoid further criminal activity as required by the foster care plan. Father's failure to take these steps, coupled with his current incarceration, established his failure, without good cause, to respond to available and reasonable rehabilitative efforts designed to remedy his daughter's condition of neglect.See Ferguson v. Stafford County Dep't of Social Servs., 14 Va. App. 333, 340, 417 S.E.2d 1, 5 (1992); Tullos v. Roanoke City Dep't of Social Servs., 12 Va. App. 617, 619, 405 S.E.2d 433, 434 (1991).
The circuit court found that it was not reasonably likely that Crystal could be returned to either parent within a reasonable period of time. "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 responsibilities." Kaywood v. Halifax County Dep't of Social Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990).
On the record before us, we conclude that DSS has "demonstrate[d] by clear and convincing evidence that it is in the child's best interest for [the Bells' parental] rights to be terminated." Banes v. Pulaski County Dep't of Social Servs., 1 Va. App. 463, 466, 339 S.E.2d 902, 904 (1986). For the reasons stated, we affirm the decisions of the circuit court.
Affirmed.