Rhonda Murphy v. Norfolk Division of Social Servs ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
RHONDA MURPHY
MEMORANDUM OPINION *
v. Record No. 1474-99-1 PER CURIAM
DECEMBER 7, 1999
NORFOLK DIVISION OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
William F. Rutherford, Judge
(Mitchell D. Broudy; Broudy & Broudy, P.C.,
on brief), for appellant.
(Bernard A. Pishko, City Attorney; Martha G.
Rollins, Deputy City Attorney, on brief), for
appellee.
Rhonda Murphy appeals the decision of the circuit court
terminating her residual parental rights to her son Jamaal
McPherson Faison. Murphy raises three issues on appeal. First,
she contends the trial judge erred by failing to hold that the
Norfolk Division of Social Services was collaterally estopped
from introducing evidence that it provided services to Murphy
prior to August 1995. Second, Murphy contends the trial judge
erred by finding that Social Services made reasonable efforts to
prevent the child's removal. Third, Murphy contends the trial
judge erred by finding that Social Services presented clear and
convincing evidence sufficient to meet the requirements of Code
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
§ 16.1-283. 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.
Standard of Review
"[T]ermination of the legal relationship between parent and
child is a grave proceeding [which] . . . renders the parent 'a
legal stranger to the child' and severs 'all parental rights.'"
Weaver v. Roanoke Dep't of Human Resources, 220 Va. 921, 926,
265 S.E.2d 692, 695 (1980) (citation omitted). "The
preservation of the family, and in particular the parent-child
relationship, is an important goal for not only the parents but
also government itself." Id. "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 interests." Logan v. Fairfax County
Dep't of Human Dev., 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." Farley v.
Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990) (quoted
in Logan, 13 Va. App. at 128, 409 S.E.2d at 463). On appeal, we
presume that the trial judge "thoroughly weighed all the
evidence, considered the statutory requirements, and made its
determination based on the child's best interests." Id. at 329,
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387 S.E.2d at 796. We view the evidence in the light most
favorable to Social Services, the party prevailing below, and
grant to that evidence all reasonable inferences fairly
deducible therefrom. See Logan, 13 Va. App. at 128, 409 S.E.2d
at 463.
Collateral Estoppel
Murphy contends that Social Services was collaterally
estopped from relitigating the 1995 decision of the juvenile
court, which found that Social Services failed to provide Murphy
with adequate services prior to 1995. This argument lacks merit.
Whether Murphy received adequate assistance from Social Services
prior to 1995 was a factual question expressly addressed by court
orders.
By order entered April 12, 1994, the juvenile and domestic
relations district court granted Social Services' petition to
approve of a foster care plan with the goal changed from returning
the child home to adoption. See Code § 16.1-281. On Murphy's
appeal to the circuit court, the circuit judge found as follows in
an order dated April 6, 1995:
[N]umerous services have been provided by
[Social Services] to [Murphy] since August
1993 to stabilize her family situation and
assist her in parenting another child.
Psychological testing relevant to [Murphy's]
ability to parent [the child] was provided.
In addition, [Social Services] continued to
evaluate [Murphy's] requests for visitation
and provided two supervised visits between
[Murphy] and [the child]. To date, [Murphy]
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has been included in administrative meetings
planning for [the child's] future.
The circuit judge found that Social Services "has made adequate
and appropriate efforts to provide notice and the services
required" to Murphy and approved the foster care plan changing
the goal to adoption. This order was endorsed "Seen" by
Murphy's counsel and became a final order.
The juvenile court could find, as it did in a later
proceeding, that Social Services failed to present evidence
meeting the statutory standard for termination of Murphy's
parental rights. It could not, however, reconsider or reverse the
previously made and final factual determination in April 1995 that
Social Services had provided Murphy with adequate services. See
generally Glasco v. Ballard, 249 Va. 61, 64, 452 S.E.2d 854, 855
(1995).
Furthermore, the child remained in the custody of Social
Services after 1995. His status languished unresolved for four
years until Social Services filed a new petition in 1999 seeking
to terminate Murphy's parental rights. The trial judge based the
current decision to terminate Murphy's parental rights upon the
petition filed in 1999 and supporting evidence presented at trial.
The prior decisions did not preclude Social Services from bringing
a new petition based upon additional evidence. Therefore,
collateral estoppel is not a bar to the termination of Murphy's
parental rights.
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Reasonable Efforts to Prevent Removal
Murphy contends that the trial judge erred in finding that
Social Services proved by clear and convincing evidence that it
made reasonable efforts to remedy the underlying conditions which
led to the child's foster care placement. Citing Weaver v.
Roanoke Dep't of Human Resources, 220 Va. 921, 265 S.E.2d 692(1980), and Cain v. Commonwealth, 12 Va. App. 42, 402 S.E.2d 682(1991), Murphy contends that Social Services erroneously relied
upon the fact of her incarceration to justify its failure to
provide her with adequate services. We have ruled, however, as
follows:
[W]hile long-term incarceration does not,
per se, authorize termination of parental
rights or negate the Department's obligation
to provide services, it is a valid and
proper circumstance which, when combined
with other evidence concerning the
parent/child relationship, can support a
court's finding by clear and convincing
evidence that the best interests of the
child will be served by termination.
Ferguson v. Stafford County Dep't of Soc. Servs., 14 Va. App.
333, 340, 417 S.E.2d 1, 5 (1992). See also Tullos v. Roanoke
City Dep't of Soc. Servs., 12 Va. App. 617, 405 S.E.2d 433(1991).
The evidence proved that when Murphy was incarcerated for
approximately two years between 1991 and 1993, Murphy's
stepgrandfather had custody of the child. He relinquished
custody to Social Services in November 1991. The foster care
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plan goal at that time was to return the child to his
stepgrandfather, who last had custody. Appropriate services
were offered to the stepgrandfather. Murphy was incarcerated,
and the biological father's location was unknown; therefore,
neither parent was in a position to have the child returned to
his or her custody.
Upon Murphy's release from prison, Social Services
reassessed the situation and treated the case as a new case.
Through Social Services, Murphy received therapy, home-based
services, anger management, drug rehabilitation, and job
placement. Although Murphy sought visitation after her release
from prison, serious questions arose whether visitation was in the
child's best interests. A report prepared in 1994 following
psychiatric testing recommended "extreme caution in returning any
parenting role" to Murphy due to "very serious psychological
problems which relate to a lack of consistent reality testing,
paranoid delusions and extremely poor judgment and impulse
control." The judge denied Murphy's request for visitation.
Evidence also proved that Murphy received services in
connection with her two older children. Code § 16.1-283(C)(2)
provides, in pertinent part that "[t]he 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."
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This record clearly demonstrates that Social Services
provided numerous services to Murphy following her release from
prison. Therefore, we find no merit in Murphy's contention.
Sufficiency of the Evidence under Code § 16.1-283
The circuit court found that Social Services presented
clear and convincing evidence that termination of Murphy's
parental rights was in the child's best interests and that the
requirements of Code § 16.1-283 had been met. The evidence
proved the child had been with the same foster parents since
1992. The evidence was uncontroverted by all except Murphy that
he wanted to be adopted.
Code § 16.1-283(C)(2) provides, in pertinent part, that the
residual parental rights of a parent of a child placed in foster
care may be terminated if the trial judge finds, based upon
clear and convincing evidence, that it is in the child's best
interests and that the following circumstances exist:
The parent . . . , without good cause, [has]
been unwilling or unable within a reasonable
period of time 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 [her] obligations under and within the
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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 or parents and a public or private
social, medical, mental health or other
rehabilitative agency shall constitute prima
facie evidence of this condition.
The evidence established that, despite the passage of time,
Murphy had not yet resolved the problems that initially led to
the child's foster care placement. In her testimony, Murphy
expressed no sense of her responsibility regarding the
underlying causes of the child's foster care placement. The
initial custody order noted that Murphy's home lacked
electricity, water, and adequate food and that Murphy was about
to be evicted. At the termination hearing, Murphy claimed,
however, that Social Services had failed to look in the room she
was renting and only looked at the wrong part of the house.
Murphy also testified that she was incarcerated on a "false
arrest charge." Moreover, at the time of the hearing, which was
more than eight years after Social Services obtained custody,
Murphy was receiving daily services through the Norfolk
Community Services Board for adult living skills. In that
setting her counselors were "trying to assist her currently with
obtaining some type of income, whether it's through a job, and
to assist her with her appeal process and with her SSI."
"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.'" Logan, 13 Va. App. at 128,
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409 S.E.2d at 463 (citation omitted). The record supports the
trial judge's finding that Social Services presented clear and
convincing evidence satisfying the statutory requirements of
Code § 16.1-283 and establishing that termination of Murphy's
parental rights was in the child's best interests. Accordingly,
we summarily affirm the decision.
Affirmed.
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