Opinion
Record No. 2592-92-3
September 21, 1993
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY THOMAS H. WOOD, JUDGE.
(Harold W. Dingman, on brief), for appellant.
(W. Chapman Goodwin; Vellines, Cobbs, Goodwin Glass, 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 this appeal is without merit. Accordingly, we affirm the decision of the circuit court. Rule 5A:27. As the parties are familiar with the facts of this case, we recite them only as necessary to explain our decision.
Cynthia Renee Hunter appeals the decision of the circuit court terminating her residual parental rights to three of her children. Hunter presents three questions on appeal: (1) whether clear and convincing evidence supported the court's decision to terminate her parental rights; (2) whether the Augusta County Department of Social Services ("DSS") complied with the requirements of Code § 16.1-283 when it sought to terminate her parental rights; and (3) whether she demonstrated that the conditions which led to the placement of her children into foster care had been or would be substantially corrected within a reasonable time.
On appeal, we view the evidence in the light most favorable to the party prevailing below, giving it all reasonable inferences fairly deducible therefrom. Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990). "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).
I.
Code § 16.1-283(C) provides that residual parental rights to 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 the parent, without good cause, has been unwilling or unable within a reasonable period of time to substantially remedy the conditions which led to the foster care placement, despite the efforts of social, medical, mental health or other rehabilitative agencies.
The record indicates that the appellant's children have been in foster care since 1988; that the children were abused and neglected by their mother; that counseling, including substance abuse therapy and psychological testing, were required under the terms of the foster care plans; and that Hunter complied sporadically and, in at least one instance, only after being found in contempt of court. Based upon the evidence, we cannot say that the court's decision to terminate Hunter's parental rights is plainly wrong or without evidence to support it.
II.
Hunter next argues that DSS was obligated by the foster plan to allow her a full year to comply with its requirements, and that because DSS sought to terminate her parental rights before July, 1992, it did not demonstrate by clear and convincing evidence her failure to substantially remedy the conditions which led to her children's placement in foster care. This argument misstates the language of Code § 16.1-283(C), which requires "a reasonable period not to exceed twelve months" within which a parent must substantially remedy the underlying conditions which led to foster care placement (emphasis added). Code § 16.1-283(C) does not require DSS to provide a rigid period of continued foster care for a full year when the best interest of the children demand otherwise.
Moreover, Hunter knew what she needed to do to substantially remedy the underlying conditions at least as early as November, 1990. The record contains evidence that Hunter was unable or unwilling, without good cause, to make the necessary changes. We cannot say that the court's finding is plainly wrong or without evidence to support it.
III.
Finally, Hunter asserts that she has substantially remedied the conditions which led to foster care, and the circuit court