Susan Deskin v. Clarke Co. DSS and Daniel Deskin ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, * Judge Elder and
Senior Judge Duff
Argued at Alexandria, Virginia
SUSAN DESKIN
MEMORANDUM OPINION** BY
v. Record No. 0623-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
NOVEMBER 25, 1997
CLARKE COUNTY DEPARTMENT OF
SOCIAL SERVICES AND
DANIEL R. DESKIN
FROM THE CIRCUIT COURT OF CLARKE COUNTY
James L. Berry, Judge
Gregory W. Bowman (Chasler & Bowman, P.L.C.,
on brief), for appellant.
Russell A. Fowler (Fowler, Griffin, Coyne &
Coyne, P.C., on brief), for Clarke County
Department of Social Services.
John Michael Hobert (Hobert & Kerr, P.C., on
brief), Guardian ad litem for the subject
child, an infant.
No brief or argument for Daniel R. Deskin.
The sole issue raised by Susan Deskin (appellant) is whether
the evidence was sufficient to support the trial court's
determination that her eight-month-old child was neglected while
in her care and custody. Finding no error, we affirm.
On appeal, we must view the evidence and all reasonable
inferences therefrom in the light most favorable to the
prevailing party below, Clarke County Department of Social
*
On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
**
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Services (DSS). When the record contains credible evidence in
support of the findings made by the trial court, the appellate
court may not retry the facts or substitute its view of the facts
for those of the trial court. Ferguson v. Stafford County Dep't
of Soc. Servs., 14 Va. App. 333, 336, 417 S.E.2d 1, 2 (1992).
"The trial court's decision, when based upon an ore tenus
hearing, is entitled to great weight and will not be disturbed
unless plainly wrong or without evidence to support it." Venable
v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651 (1986).
Viewed in this fashion, the evidence established that on
August 14, 1995, appellant's eight-month-old child was removed
from her home by Child Protective Services after police responded
to a domestic dispute. The child showed no signs of physical
abuse at that time. 1 Appellant was found to be in an agitated
state with track marks on her arms and dilated pupils. A search
of the home revealed fresh needles and syringes in the trash.
While initially denying any drug usage, she later admitted to
using heroin. This was confirmed by a drug test administered
1
"Abused or neglected child" means any child:
1. Whose parents or other person responsible
for his care creates or inflicts, threatens
to create or inflict, or allows to be created
or inflicted upon such child a physical or
mental injury by other than accidental means,
or creates a substantial risk of death,
disfigurement or impairment of bodily or
mental functions.
Code § 16.1-228 (emphasis added). See also Code § 63.1-248.2.
2
later that day. Appellant, who has been diagnosed as "opinoid
dependent, sedative dependant, alcohol abusive and cocaine
dependent" has a twenty-year history of drug abuse and criminal
activity. She has participated in several treatment programs,
but has relapsed after completion each time. On January 23,
1996, she was sentenced to confinement for twenty-three years
with all time suspended except two years. She was due to be
released on July 31, 1997.
After the ore tenus hearing the trial judge found that:
Based upon the evidence presented, including
the ore tenus testimony of the
representatives of the Department of Social
Services of Clarke County, Virginia, Officer
Chambers of the Berryville Police Department
and one John Harris, and based upon the
natural mother's history of convictions for
illegal drug use, statutory burglary, grand
larceny, unauthorized use of a motor vehicle
and numerous instances of forgery and
uttering checks, and based upon the natural
mother's history of drug addiction and based
upon the natural mother's resulting physical
incarceration, rendering her completely
unable at this time to care for the minor
child, the Court does find that the minor
child was neglected while in the care and
custody of the natural mother. The Court
specifically notes that the abuse and/or
neglect of the minor child is passive rather
than active abuse or neglect. However, the
child was neglected and endangered by the
natural mother's chronic substance abuse
which from time to time has rendered her
unable to care for the minor child.
Custody of the child was continued with DSS while appellant
was incarcerated.
Appellant contends that because there was no visible
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evidence of active abuse and the trial court found "passive"
abuse, that the requirements of Code § 16.1-228 were unmet. This
position is without merit. "[T]he statutory definitions of an
abused or neglected child do not require proof of actual harm or
impairment having been experienced by the child. The term
'substantial risk' speaks in futuro." Jenkins v. Winchester
Dep't of Soc. Servs., 12 Va. App. 1178, 1183, 409 S.E.2d 16, 19
(1991). "The Commonwealth's policy is to protect abused children
and to prevent further abuse of those children. This policy
would be meaningless if the child must suffer an actual injury
from the behavior of his or her parent . . . . [T]he statute
[does not] impose such trauma upon a child." Jackson v. W., 14
Va. App. 391, 402, 419 S.E.2d 385, 391 (1992).
The fact that the child suffered no injury while her parent
was under the influence of self-induced drugs is not a mitigating
circumstance. Rather, it attests to the parties' good fortune.
The evidence clearly supports the trial court's finding of
2
neglect and the temporary placement with DSS.
For the foregoing reasons, we affirm.
Affirmed.
2
Appellant also contends that her incarceration alone may
not be determinative of a finding of neglect. Cain v.
Commonwealth, 12 Va. App. 42, 402 S.E.2d 682 (1991). The trial
court did not base its finding of neglect solely on appellant's
later unavailability, but rather considered it as one aspect of
her neglect.
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