Christopher Foreman v. Fairfax Co. Dept.Family Svcs ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
CHRISTOPHER FOREMAN
MEMORANDUM OPINION *
v. Record No. 1432-99-4 PER CURIAM
DECEMBER 14, 1999
FAIRFAX COUNTY DEPARTMENT
OF FAMILY SERVICES
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Henry E. Hudson, Judge
(Mark Bodner, Guardian ad litem, on brief),
for appellant.
(David P. Bobzien, County Attorney; Robert
Lyndon Howell, Deputy County Attorney;
Dennis R. Bates, Senior Assistant County
Attorney; Darrell D. Jackson, Assistant
County Attorney, on brief), for appellee.
Christopher Foreman (Foreman) appeals the decision of the
circuit court terminating his parental rights to Roxanne Cierra
Sheppard. The circuit court found that the Fairfax County
Department of Family Services (DFS) presented clear and convincing
evidence establishing the statutory requirements set out in Code
§ 16.1-283(C)(1) and (2) for termination of Foreman's parental
rights. On appeal, Foreman contends that the trial court erred in
finding DFS presented sufficient evidence to prove that (1) the
child suffered as a result of neglect and that the neglect
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
presented a serious and substantial threat to the child's
development; and (2) DFS made reasonable and appropriate efforts
to communicate with Foreman and to strengthen the parent-child
relationship. Foreman also raises a challenge under Code
§ 16.1-283(A) to the circuit court's jurisdiction to hear the DFS
petition. Upon reviewing the record and briefs of the parties, we
conclude that this appeal is without merit. Accordingly, we
summarily affirm the decision of the trial court. See Rule 5A:27.
According to the evidence, Foreman left Roxanne, who was four
years old at the time, with her mother while he went to a party.
When he returned at 2:00 a.m., the mother was gone. Foreman
allegedly asked a neighbor to watch the child while he searched
for the mother. However, on August 10, 1997, the police,
responding to a call of unattended children, found Roxanne and a
two-year-old boy wandering outside at 2:30 a.m. Foreman called
DFS on August 11, 1997, seeking custody of Roxanne. Foreman was
denied custody following a hearing in the juvenile and domestic
relations district court on August 15, 1997. By district court
order entered September 4, 1997, Roxanne was found to be "an
abused and/or neglected child as defined in Va. Code
§ 16.1-228(5)." A foster care plan with the goal of returning
Roxanne home was developed, under which, among other items,
Foreman was required to participate in parenting classes; complete
an alcohol and drug abuse evaluation, follow any recommended
treatment, and submit to random drug and alcohol tests;
- 2 -
participate in family counseling; and undergo a psychosocial
assessment. Evidence also indicated that Foreman and the mother
had previous dealings with DFS and that their parental rights to
several other children had previously been terminated.
Foreman testified at trial that he saw his daughter every
week after she was taken into foster care. The DFS worker
testified that Foreman first saw the child on July 23, 1998 and
saw her six more times before September 2, 1998. Foreman was
incarcerated on September 9, 1998 on habitual offender charges,
with an anticipated release date in August 1999. Foreman
testified that he had completed a parenting class and had
partially completed a drug and alcohol class prior to his
incarceration. DFS presented evidence that Foreman was dismissed
from the drug and alcohol class for non-compliance and that
similar services were available while Foreman was in prison.
Foreman's mother testified that Roxanne and Foreman were
welcome to live in her home and that she would assist him. She
acknowledged that she works and that her husband is too ill to
care for the child. No additional childcare arrangements were
currently planned.
Standard of Review
"When addressing matters concerning a child, including the
termination of a parent's residual parental rights, the
paramount consideration of a trial court is the child's best
- 3 -
interests." Logan v. Fairfax County Dep't of Human Development,
13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991).
"In matters of a child's welfare, trial
courts are vested with broad discretion in
making the decisions necessary to guard and
to foster a child's best interests." The
trial court's judgment, "when based on
evidence heard ore tenus, will not be
disturbed on appeal unless plainly wrong or
without evidence to support it."
Id. (citations omitted).
The trial court found that DFS presented clear and
convincing evidence meeting the statutory requirements set out
in Code § 16.1-283(C)(1) and (2) (Michie 1999). "Code
§ 16.1-283 embodies 'the statutory scheme for the . . .
termination of residual parental rights in this Commonwealth'
[which] . . . 'provides detailed procedures designed to protect
the rights of the parents and their child,' balancing their
interests while seeking to preserve the family." Lecky v. Reed,
20 Va. App. 306, 311, 456 S.E.2d 538, 540 (1995) (citations
omitted).
Code § 16.1-283(C)(1) provides, in pertinent part, that the
residual parental rights of a parent of a child placed in foster
care may be terminated if the court finds by clear and
convincing evidence that it is in the best interests of the
child and that:
The parent . . . [has], without good cause,
failed to maintain continuing contact with
and to provide or substantially plan for the
future of the child for a period of six
- 4 -
months after the child's placement in foster
care notwithstanding the reasonable and
appropriate efforts of social, medical,
mental health or other rehabilitative
agencies to communicate with the parent or
parents and to strengthen the parent-child
relationship. Proof that the parent . . .
[has] failed without good cause to
communicate on a continuing and planned
basis with the child for a period of six
months shall constitute prima facie evidence
of this condition.
Alternatively, Code § 16.1-283(C)(2) provides, in pertinent
part, that the parent's parental rights may be terminated if the
court finds by clear and convincing evidence that it is in the
best interests of the child and that
[t]he parent . . ., without good cause,
[has] been unwilling or unable within a
reasonable period not to exceed twelve
months from the date the child was placed in
foster care to remedy substantially the
conditions which led to or required
continuation of the child's foster care
placement, notwithstanding the reasonable
and appropriate efforts of social, medical,
mental health or other rehabilitative
agencies to such end. Proof that the parent
. . . , without good cause, [has] failed or
been unable to make substantial progress
towards elimination of the conditions which
led to or required continuation of the
child's foster care placement in accordance
with their obligations under and within the
time limits or goals set forth in a foster
care plan filed with the court or any other
plan jointly designed and agreed to by the
parent . . . and a public or private social,
medical, mental health or other
rehabilitative agency shall constitute prima
facie evidence of this condition. The court
shall take into consideration the prior
efforts of such agencies to rehabilitate the
parent or parents prior to the placement of
the child in foster care.
- 5 -
Neglect
Foreman contends that the trial court erred by finding that
the child suffered as a result of neglect and that the neglect
she suffered presented a serious and substantial threat to the
child's development. Foreman's argument arises under Code
§ 16.1-283(B)(1). The trial court made no finding under this
section and, therefore, this contention is without merit.
Nonetheless, we note that the initial determination that the
child was an abused and/or neglected child was based upon the
circumstances under which the child was taken into custody. The
child, then four, and a two-year-old boy were allegedly left in
the care of a ten-year-old boy for a number of hours by the
child's mother while Foreman attended a party until 2:00 a.m.
The child was found wandering the streets, unattended, at
2:30 a.m. According to the testimony of Amy Yeates, the DFS
worker who removed the child, Foreman admitted that he did not
live in the home with the child or her mother; that he saw them
about once a month; that he and the mother had bouts of domestic
violence; and that he drank. The proposed foster care plan
contained specific steps through which Foreman could address
both his parental responsibilities and his abuse of alcohol. We
find sufficient evidence in the record supporting a finding that
the child was neglected and that the neglect posed a serious and
substantial threat to the child's development.
- 6 -
Reasonable and Appropriate Efforts on the Part of DFS
Appellant also contends that the trial court erred in
finding that DFS presented clear and convincing evidence that it
made appropriate efforts to assist him to alleviate the
conditions resulting in the child's foster care placement. We
find no error.
The foster care plan initially prepared in 1997 included
specific steps that were aimed at improving Foreman's parenting
skills and addressing his ongoing problems with alcohol. While
Foreman contended that he completed a parenting skills class,
the evidence indicated that this was a four class "Introduction
to Parenting" course, rather than the required twenty-six week
parenting class. In the nearly two years since the child's
placement in foster care, Foreman failed to complete a
recommended drug and alcohol abuse class. At trial, he argued
that he would be able to complete one in just a few more months.
We find substantial evidence in the record supporting the
trial court's finding that DFS made appropriate and reasonable
efforts to help Foreman regain custody of his daughter. DFS had
attempted to provide services to Foreman and the mother in the
past, with little result. In this instance, DFS provided
Foreman with an initial referral packet to complete, which he
never returned. Foreman began drug and alcohol services through
the county in an intensive outpatient group, but failed to
contact his counselor when he was incarcerated, despite the
- 7 -
requirement that participants notify the counselor if they are
unable to attend. Alcohol and drug services were available to
him while he was incarcerated. Therefore, the record
demonstrates that appropriate services were offered by DFS but
Foreman made little or no effort to respond to those offers.
"The law does not require the [DFS] 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).
Jurisdiction of the Circuit Court
Foreman also contends that the trial court lacked
jurisdiction because DFS failed to file with the juvenile and
domestic relations district court the necessary foster care plan
documenting termination of his parental rights as in the child's
best interests prior to filing its petition seeking termination,
in violation of the requirements of Code § 16.1-283(A). Foreman
admits that this issue is raised for the first time on appeal.
However, challenges to subject matter jurisdiction may be raised
at any time, even for the first time on appeal. See generally
Morrison v. Bestler, 239 Va. 166, 170, 387 S.E.2d 753, 756
(1990).
The record demonstrates that the revised foster care plan
with the changed goal of adoption was filed in the juvenile and
domestic relations district court on March 18, 1998. The
petition seeking termination of parental rights was filed on
March 30, 1998. Therefore, this issue is without merit.
- 8 -
The evidence presented below demonstrated that the child
was in a stable foster home where she was loved and cared for.
The foster parents expressed an interest in adopting the child
if that option were available. The child had emotional and
learning difficulties arising from the lack of stability in her
earlier years that the foster parents were addressing. She had
seen Foreman only sporadically since coming into foster care.
She had seen her grandmother only three times since 1997.
Foreman admitted that he had little or no contact with his
other six children; he was unsure whether his parental rights
had been terminated. He indicated to the trial court that he
had discussed with his mother having Roxanne come to live with
her only a month or two before the trial. His prospective plans
were unclear and his past history unpersuasive that he would
make the necessary changes in his life to provide for the child
if she were returned to him. "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 . . . responsibilities." Kaywood v. Halifax County
Dep't of Social Servs., 10 Va. App. 535, 540, 394 S.E.2d 492,
495 (1990).
Evidence in the record supports the trial court's decision
that DFS presented clear and convincing evidence proving that
termination of Foreman's parental rights was in the best
interest of the child and meeting the requirements of Code
- 9 -
§ 16.1-283(C)(1) and (2). Accordingly, the decision of the
circuit court is summarily affirmed.
Affirmed.
- 10 -