Opinion
Record No. 0137-93-3
Decided: July 19, 1994
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY, J. Michael Gamble, Judge
Affirmed.
James B. Fray, for appellant.
David W. Shreve, County Attorney for Campbell County, for appellee.
Present: Judges Benton, Koontz, and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Daniel Sonny Wright and his wife, Elaine W. Wright, each appeal the judgments of the circuit court judge terminating their residual parental rights to two of their children, their oldest sons. This opinion addresses the father's challenge to the judgment. The father asserts that the judge erred in terminating his parental rights because the evidence at trial was outdated and pertained almost exclusively to the mother's fitness and not his own. We affirm the judgment.
I.
The evidence proved that in 1985, the mother gave birth to a boy, her second child. Daniel Sonny Wright was not then married to the mother but was the child's father. In December 1985 this child suffered severe scald burns. The mother was convicted of assault and battery in connection with the child's burns, but she denied that she intentionally harmed her son.
Since 1985, the Campbell County Department of Social Services and Lutheran Family Services have both attempted to provide the mother and father with services intended to improve their ability to function as appropriate parents. The services have included classes in parenting skills, financial management instruction, financial assistance, vocational education, and counseling. When these services did not produce results, the Department began proceedings to terminate the parental rights of the mother and father.
Kitty Waltemyer, a Department social worker who once was in charge of the case, testified at a hearing in 1987 that the Department had provided the full range of available services to the mother and the father. She also testified that the Department could do nothing more to help reunite the child with his parents because of both parents' refusal to cooperate with remedial programs such as counseling, employment efforts, one-on-one planning, and work with mental health counselors. The Department obtained custody of this child and successfully petitioned the court to terminate the residual parental rights of the mother and the father. The father does not contest that action on this appeal.
The evidence proved that the Department had had prior experience with the mother before she met the father. In 1980, when the mother was seventeen, she married Carlton Wayne Harris. Two years later they had a child. At the age of three months, the child was admitted to a hospital with three broken ribs, a broken arm, a broken leg, and compression fractures of two vertebrae. The child was also diagnosed as failing to thrive. In response to this incident, the Department intervened and offered the mother extensive remedial services. These services were unsuccessful in effecting significant changes. In 1985, the mother voluntarily terminated her residual parental rights to the child.
The record does not establish when the mother and her first husband were divorced. However, neither the mother nor the father dispute that Daniel Sonny Wright is the father of the mother's second child.
In March 1988, the mother gave birth to another son, her third child. One week later the mother and the father married. They do not dispute that he was the father of the third child. The Department obtained custody of this child at birth and placed him in a foster home. In August 1988, the Department petitioned for the termination of the mother's and the father's parental rights regarding this child. The circuit court judge dismissed the petition, ruling that the Department had failed "legally and factually to carry its required burden" under Code Sec. 16.1-281. This Court, in an unpublished opinion, Campbell County Dept. of Social Servs. v. Wright, Record No. 1448-89-3 (Va.App. July 24, 1990), affirmed the dismissal on the ground that the Department failed to file a foster care plan in a timely manner as required by Code Sec. 16.1-281.
In 1989, the mother and the father had another son, her fourth child. The Department also obtained custody of this child at birth and placed him in a foster home.
At a hearing in 1989, Anne Vance, another Department social worker, testified that the mother and the father failed to participate in various programs that the Department offered them, including family therapy. She testified that the mother complained that the father abused alcohol, that he had an extramarital relationship with another woman, that he remained unemployed, that he sold food stamps to buy cigarettes, that he contributed to the difficulty of keeping food in their home, and that he physically abused her. Vance also testified that because of the Department's lack of success with the parents, the programs were discontinued. She said no steps were taken by the Department in the previous twelve months to reunite either mother or father with either of the last born sons. She testified that the father had refused services saying that he had no need for them.
On April 5, 1991, the Department petitioned for the termination of the mother's and the father's parental rights to the sons born in 1988 and 1989, respectively. At the evidentiary hearing, Dr. Doyle Gentry, a licensed clinical psychologist, testified that he met with the mother for approximately two hours in 1987. Based on his session with the mother in 1987, Dr. Gentry testified that in 1987 the mother had an I.Q. of 73 and had a borderline personality disorder that made it difficult for her to maintain consistent, healthy, and stable interpersonal relationships. Dr. Gentry also noted that the mother's personality was indicative of a "high probability of an individual storing up a great deal of anger and resentment and letting it all out in episodic, very dramatic ways," and that such a personality was in Dr. Gentry's experience, "typical of someone who would abuse a young child."
Dr. Gentry testified that the mother's prognosis for change in a manner suitable for parenting was poor, especially in light of mother's history as an abused child herself. Dr. Gentry conceded that a highly motivated person might overcome a personality disorder like the mother's, but he noted that the mother's poor record of participation in counseling and her inclination to blame others for her problems indicated to him that the mother was not such a person. Dr. Gentry also testified that personality traits are not likely to change over the course of a person's lifetime, and that he would expect the mother's traits to remain much the same as they were in 1987. The trial judge denied the mother's motion for an updated psychological evaluation.
Mary Fabrizio, another Department social worker involved in this case, testified that the services offered the mother and the father included transportation services, parenting classes, and mental health counseling. Fabrizio testified that the services had been unsuccessful. She also testified that the parents received in-home services through Family Services. She said that the mother and the father did not participate in counseling or parenting classes outside of those offered by Family Services. Fabrizio testified that the mother has never been accused of abusing any child other than her first two and that the father has never been accused of abusing his children. She further testified that the father did not visit the children on any regular basis and that he was not participating in the family unit.
In 1990, the mother and the father moved from Campbell County to Halifax County. This home was in substandard condition; it lacked running water and electricity. The home now has water by way of a hose running from a nearby well into the kitchen. Family Services paid for electricity to be connected. An unprotected wood stove in the center of the home now provides heat.
The family's only source of income is Social Security benefits that the mother receives. Neither the mother nor the father has had success keeping a job. In February of 1991, the father was ordered to pay $57.50 per week in child support. An employee of the Division of Child Support Enforcement testified that the father never paid the support.
Patricia Ronk, a Family Services social worker who had counseled both parents, wrote in her concluding summary of January 1990 that the "[father] has demonstrated his unwillingness to cooperate with our services . . . [and] that [the mother] has the capability of being an appropriate parent but lacks the support she needs from [the father]."
The evidence also proved that in 1992 the mother and the father had another child, a daughter. The record indicates that although the Halifax Department of Social Services was aware of the mother's and the father's parenting history, it had not intervened in their care or custody of their infant daughter.
The trial judge granted the Department's petition to terminate both the father's and the mother's parental rights to both sons. The trial judge found that the parenting skill deficiencies and personality disorder of mother had not and were unlikely to be remedied. The trial judge found that the father is "at best a disinterested disconnected parent [who] has no interest, desire, or aptitude for progressing toward an elimination of the conditions which caused the foster care placement."
II.
The father's arguments on appeal are in essence a challenge to the sufficiency of the evidence to terminate his parental rights. He contends that he has received no social service assistance since 1989, that he is currently managing the affairs of his family well, that one of two social workers involved in the case gave his parenting skills a positive appraisal, that the evidence in the case was insufficiently current to be used to terminate his parental rights, and that his parental rights were never considered as distinct from those of the mother. Our review of this case is guided by the following standard:
For purposes of appellate review, a trial court's determination is considered to have settled all conflicts in the evidence in favor of the prevailing party, and the prevailing party's evidence is entitled to all reasonable inferences fairly deducible therefrom. In examining the evidence and determining matters regarding a child's welfare, the trial court must consider all the evidence before it. Where a trial court makes a determination which is adequately supported by the record, the determination must be affirmed.
Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795-96 (1990) (citations omitted).
The evidence proved that the two children, born in 1988 and 1989, respectively, were first placed in foster care because of concern that the father and the mother could not provide for their children a safe and secure environment. The foster care services plan that the Department submitted to the trial court in May 1988 stated that three services would be provided to the mother and the father: (1) opportunity for involvement with the child as ordered by the court; (2) information regarding the child's health and well-being; and (3) structural family therapy. The plan also stated that the mother and the father were responsible for participating in the future planning for the child, maintaining interest in the child, and requesting visitation with the child. The record establishes the father's lack of compliance with the plan and failure to progress toward remedying the conditions which resulted in the children's first being placed in foster care. Code Sec. 16.1-283(C). We conclude, therefore, that father's lack of progress constituted a prima facie case that father's parental rights should be terminated.
The father's argument that he has been offered no services since 1989 simply is not borne out by the evidence. Ronk and Fabrizio concurred in their conclusion that the father failed to take advantage of the services they offered to him. Ronk's 1990 report stated that the father "demonstrated his unwillingness to cooperate with [. . .] services" offered by Family Services and that he was not giving the mother the support she needed. Fabrizio testified in 1992 that the father did not visit regularly with the two children and that he was not participating with the children as a family unit. Fabrizio also testified that the father did not participate in the counseling or parenting classes offered by the Department. The record reveals, therefore, that the Department has offered the father remedial services since 1989, but that he has not participated fully.
The father argues that he is now managing his family well, and that as a consequence the trial judge erred in terminating his parental rights. Fabrizio testified, however, that the father is now living in substandard housing, and that he has missed many of his scheduled visits with the two children. The evidence also proved that the father remains unemployed, that the family's sole source of income is the mother's social security benefits, and that the father has not made his required child support payments. That evidence does not prove that the father is now managing his family well.
The father's contention that the social workers involved in this case differed in their appraisals of his parenting skills is, as noted above, also not borne out by the record. To the contrary, the social workers in this case were unanimous in their view that the father did not participate in the services offered to him, and that he exhibited little or no interest in the well-being of his family. The social workers' testimony gave negative assessments of the father's parenting skills and included reports of his physical abuse of the mother, his marital infidelity, and his alcohol abuse.
The father further argues that the evidence used to terminate his parental rights was not current when the trial judge heard evidence on the petition. We disagree. Fabrizio and Ronk both testified as to the father's lack of participation in the services offered to him since the first petition was dismissed in 1989. The father's lapses in visitation, in direct conflict with the foster care plan, have also occurred since 1989. The same can be said regarding the father's failure to pay child support and to attain gainful employment. Moreover, the trial judge did not err in considering the father's past history of spousal abuse, alcohol abuse, and squandering of the family's resources. These facts are particularly relevant in light of the father's refusal to participate in the social services programs which were offered to help the father provide a safe and secure environment for his children.
The father's last argument, that the trial judge did not consider his parental rights apart from those of the mother, is also without merit. The parental rights of each parent must be considered separately, and the termination of one parent's rights does not affect the rights of the other parent. Code Sec. 16.1-283(A). The trial judge specifically found, however, that the father is "at best a disinterested disconnected parent [, who] has no interest, desire, or aptitude for progressing toward an elimination of the conditions which caused the foster care placement." Clear and convincing evidence supports that finding. Therefore, the trial judge did not err in finding that the father has failed to make substantial progress toward providing a safe and secure environment for the children.
III.
Code Sec. 16.1-283(C) (2) requires a parent to "remedy substantially the conditions which led to the [children's] foster care placement." Should the parent fail to do so, and if it is in the children's best interests, the trial judge may terminate the parent's residual parental rights to the children. Code Sec. 16.1-283(C) (2). Viewing the evidence in the light most favorable to the party prevailing below, the evidence was sufficient to prove clearly and convincingly that the father has not substantially remedied the condition that resulted in his children being placed in foster care. The record proved that he failed to demonstrate an ability to provide a safe and secure environment for the children. The evidence also was sufficient to prove clearly and convincingly that "reasonable and appropriate efforts [were made by] social, medical, mental health or other rehabilitative agencies to such end." Id.
The social services agencies have been working with the father since 1985. "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 Dept. of Social Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990). For that reason, and for the foregoing reasons, the judgment of the circuit court is affirmed.
Affirmed.