Opinion
Record No. 1658-93-4
April 19, 1994
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY ARTHUR B. VIEREGG, JR., JUDGE
(Robert J. Hartsoe, on brief), for appellant.
(David P. Bobzien, County Attorney; Robert Lyndon Howell, Deputy County Attorney; Gayl Branum Carr, Assistant County Attorney, on brief), for appellee.
Present: Judges Barrow, Koontz and Bray
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Diane Rudin (mother) appeals the decision of the trial court terminating her residual parental rights to her children, Jessica, Jeremy, and Nathan. Upon reviewing the record and the 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 the following issues on appeal:
(1) whether the Fairfax County Department of Human Development (Department) satisfied its duty under Code § 16.1-283 to provide mother with appropriate, available and reasonable rehabilitative services; and
(2) whether the Department proved by clear and convincing evidence that mother's residual parental rights should be terminated pursuant to Code § 16.1-283.
"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) (citation omitted).
I.
The residual parental rights to a child found to be neglected or abused may be terminated if the court finds, by clear and convincing evidence, that it is in the child's best interests 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 . . . within a reasonable period of time.
Code § 16.1-283(B). Further, under Code § 16.1-283(C), the court may terminate residual parental rights of a child placed into foster care if clear and convincing evidence establishes it is in the child's best interests and
[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.
Code § 16.1-283(C)(2).
The offer of "reasonable and appropriate efforts . . . made to assist a delinquent parent in remedying the conditions that led to a parent's temporary relinquishment of the children to the care of the department . . . is a prerequisite to termination of parental rights." Cain v. Commonwealth, 12 Va. App. 42, 45, 402 S.E.2d 682, 683 (1991). However, "'[r]easonable and appropriate' efforts can only be judged with reference to the circumstances of a particular case." Ferguson v. Stafford County Dep't of Social Servs., 14 Va. App. 333, 338, 417 S.E.2d 1, 4 (1992).
Mother contends the Department failed to satisfy the statutory requirements because the Department did not provide appropriate rehabilitative services to her in a timely manner. Specifically, mother contends that, had the Department provided her with in-patient treatment earlier, she would have been able to make substantial progress within a reasonable period of time to remedy the conditions which led to the foster care placement of her children.
The Department assisted mother in obtaining extensive services, including drug counseling, psychiatric therapy and medication, parenting training, transportation and outreach services. Notwithstanding almost two years of these services, mother continued her drug use. The evidence demonstrates that mother's commitment to avoiding drug usage arose only after she "hit bottom" in connection with the birth of her fourth child, who was born with cocaine in her system.
Contrary to mother's assertions, she was not left without services for any period of time. The Department continued its outreach services to her, even when she discontinued her therapy and her medication. It is mere speculation to assume what result earlier in-patient treatment would have had, especially in light of the fact that, at the time of the hearing, mother was not yet in the residential treatment at all.
The trial court found by clear and convincing evidence that there
was not an omission or a failure on the part of the County. In fact, the court is convinced that the County has attempted to do a great deal for Ms. Rudin. But rather it was her drug use, sporadic drug use I suppose, not the County's attempts to help her.
The evidence support the trial court's finding that the Department met its statutory obligation to make reasonable and appropriate efforts to assist mother to remedy the circumstances which led to the foster care placement of her children.
II.
The trial judge found that clear and convincing evidence supported the termination of mother's residual parental rights under Code §§ 16.1-283(B) and (C)(2). He made this finding "based on the evidence without the benefit of the prima facie or the presumptions created in (B)(2) (a through c), but specifically find that (B)(2)(a) and (B)(2)(b) are nevertheless satisfied."
Thus, the court also found that mother suffered from "a mental or emotional illness or mental deficiency" so severe that "there is no reasonable expectation that such parent will be able to undertake responsibility for the care needed by the child" and that mother "habitually abused or [was] addicted" to drugs "to the extent that proper parental ability has been seriously impaired and the parent, without good cause, has not responded to or followed through with recommended and available treatment which could have improved the capacity for adequate parental functioning." Code § 16.1-238(B)(2)(a) and (b).
Credible evidence supports the trial judge's determination under Code § 16.1-283. The children were taken into foster care and determined to be abused or neglected pursuant to a consent degree entered in 1990. The testimony of the children's therapists established that the children continued to have special emotional and psychological needs and would require an attentive, supportive parent.
Dr. Kramer-Dover treated Jessica and Jeremy, and noted that both children "individually would require a lot of attention and certainly together seem to present a multitude of challenges" to a parent. The two children had different needs which would continue into the future and which would require ongoing parental guidance. Based upon Dr. Kramer-Dover's therapy with the family, she opined that mother would be unable to provide the intensive guidance which the children would continue to need. Without a co-caretaker available around the clock, the social and emotional development of the older children was at risk.
Dr. Towbes testified that Nathan suffered from separation anxiety disorder and needed more than the average amount of structure in his life. Nathan had a higher need for an attentive parent because of his inability to communicate his needs verbally and his reluctance to interact with new people. For instance, one method of treatment in use at the time of the hearing required the parent to provide constant positive feedback for any pro-social behavior Nathan exhibited. Dr. Towbes also testified that Nathan had bonded significantly with his foster parents.
Despite extensive parenting, counseling, and therapeutic assistance, the trial judge found that mother "will have a struggle to maintain the progress you have achieved to date; and in the final analysis, taking on the huge burden of young children with clear and evident problems with the problems which you are facing creates too great a risk for them."
This finding is supported by credible evidence. No witness could testify that mother was herself able to provide the necessary attention and structure for her children. At best, she would require a co-caretaker available around the clock, as well as continued therapy. Mother would continue to suffer from schiozo-affective disorder throughout her life and would likely require drug therapy in order to control her symptoms, which include depression, delusions and agitation. Her addiction to cocaine would also be a daily battle.
We conclude that the trial judge did not err in finding that the Department has "demonstrate[d] by clear and convincing evidence that it is in the [children's] best interest for [mother'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 trial court.
Affirmed.