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Durham v. Alexandria DSS

Court of Appeals of Virginia
Jun 7, 1994
Record No. 2176-93-4 (Va. Ct. App. Jun. 7, 1994)

Opinion

Record No. 2176-93-4

Decided: June 7, 1994

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA, Alfred D. Swerksy, Judge

Affirmed.

(E. Blair Brown; Brown Stambaugh, on brief), for appellant.

(John E. Kloch, Commonwealth's Attorney; Molly S. Dietrich, Assistant Commonwealth's Attorney, on brief), for appellee.

(Denise J. Tassi, Guardian ad litem, on brief), for Siree Durham, Lavonne Durham, Glorya Durham, and Milandred Durham.

Present: Judges Baker, Elder and Fitzpatrick


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


Christine Durham (mother) appeals the decision of the Circuit Court of the City of Alexandria terminating her residual parental rights to four of her children. Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the trial court. Rule 5A:27.

Mother raises two issues on appeal: (1) whether the Alexandria Department of Social Services (DSS) established by clear and convincing evidence that mother had not remedied the conditions which led to the foster care placement of her children; and (2) whether the continued foster care placement thwarted proof that the conditions which led to foster care placement were remedied.

On appeal, we review the evidence in the light most favorable to the . . . prevailing party. Our function is not to substitute our judgment for that of the trial judge, but to determine if the record contains sufficient credible evidence in support of the judgment from which the appeal is taken.

Ward v. Commonwealth, Dep't of Social Servs., 13 Va. App. 144, 148, 408 S.E.2d 921, 923 (1991).

I.

The trial court terminated mother's residual parental rights pursuant to Code Sec. 16.1-283(C) (2). That section states, in pertinent part:

The residual parental rights of a parent or parents of a child placed in foster care . . . 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:

* * * * * * *

2. The parent or parents, without good cause, have been unwilling or unable within a reasonable period not to exceed twelve months to remedy substantially the conditions which led to 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 has failed or been unable, without good cause, "to make reasonable progress towards the elimination of the conditions which led to the child's foster care placement in accordance with . . . the time limits or goals set forth in a foster care plan" constitutes prima facie evidence of the findings set out in (C) (2). Code Sec. 16.1-283(C) (3) (b).

The trial court found that DSS proved by clear and convincing evidence that termination of mother's parental rights was in the best interests of the children. The court also found that

[t]he question then becomes whether or not, after reasonable and appropriate efforts on behalf of the social service agency [father and/or mother] were able to correct the conditions that gave rise to the placement in foster care, and it's more than apparent from the evidence that neither [father or mother] was apparently willing or able to overcome those kinds of problems.

The court's finding is supported by credible evidence. Mother's parenting and housekeeping skills remained poor, despite the years of extensive services and assistance mother received through DSS. The evidence demonstrated that mother's interactions with her children were mercurial and inconsistent and continued to exacerbate their emotional problems.

Therefore, the record contains sufficient credible evidence in support of the decision of the trial court terminating mother's parental rights.

II.

Mother contends that, unless her children were returned to her from foster care, there was insufficient evidence to demonstrate she had not remedied the conditions which led to the children's foster care placement.

The evidence established that mother's interaction with her children remained seriously troubled. Moreover, mother failed to demonstrate her willingness to make the changes necessary for her children's return. Mother voluntarily terminated the home-based services offered through DSS, even though she was aware that the services were required before her children could begin overnight visits. Mother also repeatedly missed required mental health counseling sessions.

The trial court noted that, once children are placed into foster care, the parents have the obligation to "make every effort that they can to show that they are ready, willing, and able to take custody and control of their children back, and clearly from this evidence neither [father or mother] made such." This statement recognizes the parent's need to demonstrate that the parent has overcome the prima facie evidence established pursuant to Code Sec. 16.1-283(C) (3) (b). Here, the trial court found that mother had not done so. Credible evidence supports this finding.

For the reasons stated, we affirm the decision of the trial court.

Affirmed.


Summaries of

Durham v. Alexandria DSS

Court of Appeals of Virginia
Jun 7, 1994
Record No. 2176-93-4 (Va. Ct. App. Jun. 7, 1994)
Case details for

Durham v. Alexandria DSS

Case Details

Full title:CHRISTINE DURHAM v. ALEXANDRIA DEPARTMENT OF SOCIAL SERVICES

Court:Court of Appeals of Virginia

Date published: Jun 7, 1994

Citations

Record No. 2176-93-4 (Va. Ct. App. Jun. 7, 1994)