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FRYE v. WINCHESTER D.S.S.

Court of Appeals of Virginia. Alexandria
Jun 29, 1993
Record No. 0641-92-4 (Va. Ct. App. Jun. 29, 1993)

Opinion

Record No. 0641-92-4

June 29, 1993

FROM THE CIRCUIT COURT OF THE CITY OF WINCHESTER PERRY W. SARVER, JUDGE.

Luke H. Boyd, Jr. (Massie, Boyd Iden, on briefs), for appellants.

Jeffery R. Patton (Thomas A. Louthan, P.C., on brief), for appellee.

Present: Chief Judge Moon, Judges Coleman and Willis.

On May 1, 1993, Judge Moon succeeded Judge Koontz as chief judge.

Argued at Alexandria, Virginia.


MEMORANDUM OPINION

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


William M. Frye and Roberta A. Frye, appellants, seek reversal of the trial court's ruling terminating their parental rights pursuant to Code § 16.1-283(B). We affirm because (1) clear and convincing evidence supported the trial court's termination of the parental rights; (2) the trial court did not improperly consider the appellants' economic circumstances; and (3) the trial court did not improperly consider the mental retardation of the appellants.

On February 24, 1988, the Winchester Department of Social Services (Department) took custody of four of the appellants' seven children: Christina Lynn James (Christina), Christopher Martin James (Christopher), Virginia Susan Frye (Virginia), and Lisa Lynn Frye (Lisa) pursuant to an Emergency Removal Order by the Juvenile and Domestic Relations District Court of the City of Winchester. The four children were subsequently provided extensive psychological, educational, medical and social evaluations. On January 16, 1991, the Juvenile and Domestic Relations Court terminated the parental rights of the appellants over these same four children.

The appellants appealed the matter to the Circuit Court of the City of Winchester, and the court heard the case de novo on April 4, 1991. On February 4, 1992, the court wrote a letter opinion terminating the appellants' parental rights pursuant to Code § 16.1-283(B).

The court based its opinion on the evidence presented by David Wimberly, Ph.D., and Carmela Crawford, an adult mental health counselor, both with the Northwestern Community Services; Dr. M. Scott Dowden, a clinical social worker with Lord Fairfax Child Development Center; Patricia Hottinger, a teacher in the Rappahannock County Virginia public school system; and Laura Onley, a caseworker with the Winchester Department of Social Services. All testified on behalf of the Department. Roberta Frye, appellant, testified in her own behalf. A synopsis of the evidence based on the reports from the above witnesses, made after the children were removed from their home in February, 1988, follows.

Christina, born January 14, 1983, displayed poor verbal skills, deficient nonverbal skills, memory deficits and an underlying depression. She was characterized as learning disabled and needed special education services in order to achieve success in school.

Christopher, born March 12, 1984, exhibited visual motor difficulties and demonstrated over-activity and impulsiveness suggesting an attention deficit disorder. Concerns were expressed that he would have difficulty with written language because his fine motor skills appeared to be deficient and he needed practice with his reading and vocabulary skills.

Virginia, born on March 6, 1985, had problems with reading and arithmetic and displayed a visual motor deficit. She required educational assistance, including being read to, playing alphabet recognition games and being encouraged to use counting in everyday activities.

Lisa, born on September 9, 1986, had significant deficits related to fine motor skills and language articulation. She also displayed physical characteristics associated with cerebral palsy.

The evidence further revealed that appellants began receiving services from the Department and their agencies as early as 1980, including Aid to Dependent Children, Medicaid, Fuel Assistance, Family Focus Services, Food Stamps, psychological evaluations, developmental evaluation services, marital counseling, alcohol counseling and parenting classes. These services were provided to appellants to address various complaints against the appellants, such as child neglect, child physical abuse, spousal abuse, alcoholism, housing instability and financial/employment instability.

The court also heard evidence concerning the response by the appellants to the various programs and plans offered by the Department beginning in August 1983, and the relationship that the children now have with their foster parents.

The final decree terminating the appellants' parental rights was entered on March 21, 1992.

Appellants contend that the trial court erred in terminating their parental rights. The pertinent code section follows:

Code § 16.1-283 Termination of residual parental rights.-B. 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 . . . 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.

Proof of any of the following shall constitute prima facie evidence of the conditions set forth in subdivision B 2 hereof: . . .

c. The parent or parents, without good cause, have not responded to or followed through with appropriate, available and reasonable rehabilitative efforts on the part of social, medical, mental health or other rehabilitative agencies designed to reduce, eliminate or prevent the neglect or abuse of the child.

In Logan v. Fairfax County Dep't of Human Dev., 13 Va. App. 123, 128 409 S.E.2d 460, 463 (1991), we held as follows:

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. 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."

Id. at 128, 409 S.E.2d 463 (citations omitted).

Code § 16.1-283(B) requires clear and convincing evidence to terminate the parents' residual rights. Clear and convincing evidence is

[t]hat measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.

Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 21, 348 S.E.2d 13, 16 (1986).

When applying the above standard of review, we cannot say that the trial court erred in terminating the parental rights of the appellants. The evidence supports a finding that both prongs of Code § 16.1-283(B) were met.

First, the uncontradicted evidence presented by the Department established that these children suffer from a number of physical and mental problems. In addition to the individual evaluations, set forth above, Dr. Majarov, Ph.D., a licensed clinical psychologist with twenty-five years of experience, testified that these impediments, while both inherited and environmental, primarily involve the "adequacy of parental interaction." He further indicated that these deficiencies, caused by inadequate parental care and attention, presented a serious and substantial threat to the development of these children.

Expert testimony, psychological evaluations, educational evaluations, medical evaluations and social evaluations provided the court with substantial evidence supporting its finding. The evidence established that the lack of nurturing and care that these children suffered under their parents left them mentally and/or physically impaired and presented a serious and substantial threat to their development.

Second, we cannot say that the trial court erred in finding, based on the performance of the appellants in the programs provided by the Department, that the conditions causing the neglect could not be remedied in a reasonable time.

On April 18, 1988, a foster care service plan was prepared to address requirements for the return of the children. Those requirements included suitable residence arrangements, financial stability, family/parenting counseling and substance abuse counseling. The evidence showed appellants have not substantially complied with these requirements, nor have appellants remedied the conditions that resulted in the removal of these children.

Appellants were required to locate and maintain a home suitable for five children with basic utilities, to budget and maintain rent and utility payments, and to provide verification of payments. At the time of the hearing in the circuit court on April 4, 1991, no verifications had been received, rent was habitually paid late, termination notices had been received regarding electricity, water and sewer, and eviction was indicated. Testimony also revealed that the residence was not sufficient to house five children and three adult occupants; Roberta Frye's mother also lived with the appellants and the children.

Although Roberta Frye was to participate in Alcoholics Anonymous at least three times per week, records indicate that she may have attended ten meetings from September 1988 through May 1989, and three additional meetings in June 1989. At the time of the trial, Roberta Frye had not attended Alcoholics Anonymous for eleven months, because she stated that she had quit drinking on her own. However, she admitted that she had done so once before for a ten month period and had started drinking again.

Appellants were also required to attend parenting counseling. They only attended five of the ten sessions. Due to their failure to attend, the sessions were scheduled to take place at their home for their convenience. However, continuing marital conflict caused the parenting classes to be replaced with marital counseling. At trial, Mrs. Frye admitted that she does not understand the needs of the children.

Because of the length of time the appellants had to respond to the services, the trial court was concerned with the effect of reunification of the children with appellants. Scott Dowden, a clinical social worker and administrative director of Lord Fairfax Child Development Center, indicated that his evaluations revealed that all of the children had established bonds in their foster placements and that there was no strong emotional bond between the parents and the children. He recommended that the children not be returned to the parents. Dr. Majarov stated that in light of the passage of time, it would be grossly unfair to require these children to wait longer for proper parental support and that it would be emotionally wrenching to remove them from their current placements.

These opinions were supported by evidence. Virginia became hostile, aggressive and regressed in her mental development after brief visits with appellants. Christopher displayed behavior problems after personal telephone contact with appellants. During visits, the children did not know how to react to shows of affection from their parents.

Accordingly, we hold that a prima facie case for termination was established by clear and convincing evidence and that the response by appellants to the programs was minimal and did not indicate that the problems had been removed as required by Code § 16.1-283(B)(2)(c).

Appellants also contend that the trial court incorrectly considered their economic circumstances. Although the trial court mentioned in its opinion the fact of the appellants' economic situation, we hold there is no indication that such fact played a primary role in the court's determination. To the contrary, the court, in its determination, focused on the neglect of the children and lack of participation by appellants in the Department's programs over the years.

The appellants also contend that the trial court incorrectly relied on the appellants' mental retardation to terminate the parental rights. We disagree.

The trial court explicitly considered the parents' mental condition in recognizing that mental retardation does not, in itself, prevent an individual from parenting. The court relied on testimony from David Wimberly, Ph.D., that appellants are only mildly retarded, but that such an intelligence level would show only a lesser ability to parent than persons of higher intelligence and should not be used to measure parenting ability. The court also noted that the intelligence level is a factor in appellants' ability to participate in the Department's programs, but that the Department had, nonetheless, been sufficiently patient with appellants, and that a reasonable response time must be adhered to for the best interests of the children.

The conclusion of the court was that the failure of appellants to participate adequately in the Department's programs was not due to their intelligence, but due to their unwillingness to participate.

Accordingly we affirm the trial court's decision to terminate the parental rights of appellants.

Affirmed.


Summaries of

FRYE v. WINCHESTER D.S.S.

Court of Appeals of Virginia. Alexandria
Jun 29, 1993
Record No. 0641-92-4 (Va. Ct. App. Jun. 29, 1993)
Case details for

FRYE v. WINCHESTER D.S.S.

Case Details

Full title:WILLIAM M. FRYE AND ROBERTA A. FRYE v. WINCHESTER DEPARTMENT OF SOCIAL…

Court:Court of Appeals of Virginia. Alexandria

Date published: Jun 29, 1993

Citations

Record No. 0641-92-4 (Va. Ct. App. Jun. 29, 1993)