Opinion
Record No. 2059-92-3
July 13, 1993
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE KENNETH M. COVINGTON, JUDGE DESIGNATE.
(Susan Z. Cohen, on brief), for appellant.
(Vaso T. Tahmin, Assistant Commonwealth's Attorney, 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 trial court. Rule 5A:27.
Joyce Ann Mohadess appeals the termination of her parental rights to three of her children. She contends that the Commonwealth failed to meet its burden of proof under Code § 16.1-283(b).
In order to satisfy its burden of proof in a proceeding to terminate parental rights, the Commonwealth must show, by clear and convincing evidence, that 1) termination is in the best interests of the children; 2) the neglect or abuse suffered by the children is a serious and substantial threat to their life, health, or development; and 3) it is not reasonably likely that the conditions which resulted in the neglect or abuse can be substantially corrected or eliminated so as to allow the safe return of the children to their parent within a reasonable period of time. Code § 16.1-283(B). See Edwards v. County of Arlington, 5 Va. App. 294, 306, 361 S.E.2d 644, 650 (1987). Where a trial court decides that these factors are present, this determination is equivalent to a finding of parental unfitness. Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 21, 348 S.E.2d 13, 16 (1986). Prima facie proof of the third condition results from proof that the parent, without good cause, has 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." Code § 16.1-283(B)(2)(c). The court's primary concern is the best interests of the children. Logan v. Fairfax County Dept. of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991).
On appeal, we presume that the trial court has thoroughly weighed all the evidence, considered the statutory requirements, and reached a decision based on the children's best interests. Farley v. Farley, 9 Va. App. 326, 329, 387 S.E.2d 794, 796 (1990). We review the evidence in the light most favorable to the party who prevailed below and afford that party all reasonable inferences deducible therefrom. Logan, 13 Va. App. at 128, 409 S.E.2d at 463. A trial court is vested with broad discretion in matters regarding the welfare of children, and its judgment, when based on evidence heard ore tenus, will not be disturbed on appeal unless plainly wrong or without evidence to support it. Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988).
In May 1989, Mohadess had two children taken from her custody and placed in foster care on allegations of neglect. The children had been left alone, were living in filthy conditions, and had insufficient food. The following year, the third child was born while Mohadess was obtaining in-patient treatment for substance abuse. The infant had traces of cocaine in his system, indicating recent drug use by Mohadess, and was developmentally delayed due to Mohadess' use of cocaine during her pregnancy. The infant was immediately placed in foster care.
Prior to this time, the Roanoke City Department of Social Services ("DSS") worked intensively with Mohadess, trying to get her to leave an abusive relationship with the children's father, quit her drug habit, and stop prostituting herself. DSS offered family and substance abuse counseling, and made referrals for housing and employment. Mohadess did not follow through with any of these services. Mohadess and DSS entered into several contracts designed to help her stabilize her life. The last contract Mohadess signed was for a three-month period ending January 1990. She refused to sign any subsequent contracts. Under the final contract, Mohadess agreed to locate housing, follow through with substance abuse counseling, remain employed for three months, and visit the children on a regular basis. Despite assistance from DSS, she failed on each of these goals. Mohadess had five different residences during this three-month period. Her visits to the children were sporadic. She failed to maintain a job, or to successfully complete substance abuse treatment. In attempting to help Mohadess satisfy her contract, DSS made housing referrals, took her apartment hunting, helped her move, monitored employment, referred her to job training, arranged for visits with the children, and monitored drug treatment.
After the expiration of that contract, Mohadess kept in sporadic contact with DSS. She left Roanoke in early 1991. She occasionally sent letters to DSS, some of them from the Richmond City Jail. In these letters, Mohadess would express her love for her children and her intent to turn her life around, and ask for pictures or a visit. She did not offer specific plans or seek help from DSS. Mohadess was convicted of prostitution in Richmond and spent time in jail there. When she returned to Roanoke in 1992 for the termination proceedings, she was arrested on outstanding charges for solicitation and possession of cocaine.
A social worker for DSS testified that the children are doing well in foster care. The youngest child was in a specialized foster care home for eighteen months due to his behavioral and developmental problems caused by the cocaine in his system at birth. He was then placed in the foster home with his sister. The older boy is in a different foster home where he is doing well and is very attached to the family.
Mohadess argues that DSS did not offer her services or work with her after February 1991. However, the record reveals that DSS made extensive efforts to help Mohadess prior to that time, and that Mohadess refused to cooperate and, in fact, moved from the Roanoke area. DSS is not required "to force its services on an unwilling or disinterested parent." Barkey v. Commonwealth, 2 Va. App. 662, 670, 347 S.E.2d 188, 192 (1986).
The trial court found, by clear and convincing evidence, that Mohadess, without good cause, failed and refused to respond to or follow through with appropriate, available, and reasonable rehabilitative efforts on the part of DSS designed to reduce, eliminate or prevent neglect of the children. The court also found that placement of the children with the mother would be contrary to the welfare of the children and that termination of Mohadess' parental rights is in the children's best interests. The neglect suffered by the children clearly is a serious and substantial threat to their life, health and development. Therefore, we conclude that the Commonwealth carried its burden of proof. The trial court's decision is not plainly wrong or without evidence to support it. Peple, 5 Va. App. at 422, 364 S.E.2d at 237.
For the reasons stated, we affirm the circuit court's decision.
Affirmed.