Opinion
Record No. 0495-93-2
August 24, 1993
FROM THE CIRCUIT COURT OF HENRICO COUNTY GEORGE F. TIDY, JUDGE.
(Christine E. Marra, on briefs), for appellant.
(George T. Elmore, III, Assistant County Attorney, on brief), for appellee.
Present: Judges Baker, Elder and Fitzpatrick.
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.
Carol O'Dell appeals the decision of the circuit court terminating her residual parental rights to her son Brandon. She raises three questions on appeal: whether clear and convincing evidence supported the court's determination that the Department of Social Services ("DSS") had made "all reasonable and appropriate efforts" to assist O'Dell; whether clear and convincing evidence demonstrated that termination was in the best interests of the child; and whether dismissal of her petition for permanent foster care was in the best interests of the child.
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).
Code § 16.1-283(C) requires a court, in order to terminate parental rights, to find that the governmental agency has established by clear and convincing evidence that:
[t]he parent . . ., without good cause, [has] 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.
The record before us demonstrates that O'Dell received substantial assistance from DSS, including referrals for counseling and job placement services, and assistance in locating housing. She received parenting skills training and weekly counseling through Family and Children's Services. The record also indicates that O'Dell elected not to pursue other options made available to her. 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)).
O'Dell asserts that there was not clear and convincing evidence that termination of her parental rights was in the best interests of her son. It is true that two witnesses gave, at best, qualified support for the possibility of some continuation of the relationship between O'Dell and her son. Even these witnesses, however, agreed that O'Dell was not able to provide adequate parenting for Brandon. Supervised visitation was the most that either could recommend.
On the other hand, there was testimony that Brandon had suffered neglect and abuse, including possible sexual abuse, at the hands of his mother; that he was afraid to be with his mother and afraid he would be taken away from the safety of his foster home; and that his behavior was consistent with that of children who have received abusive treatment by their parents. Brandon's behavior greatly improved while he was in the care of his foster parents, although he still demonstrated some behavioral problems and will likely have special educational needs throughout his school years. Evidence was also introduced that Brandon had developed strong, positive bonds with his foster parents.
"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). Based upon the evidence presented to the circuit court, we cannot say that the court's finding is plainly wrong or without evidence to support it.
O'Dell asserts the court erred in dismissing her petition to place Brandon in permanent foster care. Placement in permanent foster care is not "a less drastic form" of termination of parental rights, "but rather is a different and distinct alternative." Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 23, 348 S.E.2d 13, 17 (1986). See also Stanley v. Fairfax County Dep't of Social Servs., 10 Va. App. 596, 605, 395 S.E.2d 199, 204 (1990), aff'd, 242 Va. 60, 405 S.E.2d 621 (1991). Evidence before the court clearly established that Brandon needed a stable environment and that visits with his mother were upsetting and potentially life-threatening. "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).
Under Code § 63.1-206.1(A), a court "shall not" order placement in permanent foster care unless placement with the natural parents is not an option, and "diligent efforts have been made . . . to place the child for adoption and such efforts have been unsuccessful or adoption is not a reasonable alternative." The trial court found that it was in Brandon's best interests "to find a home where he can have stability and security." Because we find that clear and convincing evidence supported the trial court's decision, we find no error in its decision dismissing O'Dell's petition to place her son in permanent foster care.
On the record before us, we conclude that the Department has "demonstrate[d] by clear and convincing evidence that it is in the child's best interest for [O'Dell's 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 decision of the circuit court.
Affirmed.