Lois Evone Cherry Hash v. Campbell Co. DSS ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
LOIS EVONE CHERRY HASH
MEMORANDUM OPINION *
v. Record No. 1058-99-3 PER CURIAM
OCTOBER 26, 1999
CAMPBELL COUNTY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
J. Michael Gamble, Judge
(Craig P. Tiller; Davidson, Sakolosky,
Moseley & Tiller, P.C., on brief), for
appellant.
(David W. Shreve, County Attorney, on brief),
for appellee.
(Aubrey J. Rosser, Jr., on brief), Guardian
ad litem for the minor child.
Lois Evone Cherry Hash appeals the decision of the circuit
court placing her child in permanent foster care. The trial
court found that the child was a neglected child, that Campbell
County Department of Social Services made diligent but
unsuccessful efforts to return the child home, and that no less
drastic alternatives existed which could reasonably and
adequately protect the child's life and health. On appeal, the
mother contends that (1) there was insufficient credible
evidence to support the trial court's findings that the child
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
was neglected, that reasonable efforts had been made to prevent
removal of the child from the mother's home, and that there are
no less drastic alternatives than removal to reasonably and
adequately protect the child's life and health; (2) there was
insufficient credible evidence to support the trial court's
finding that the Department made diligent but unsuccessful
efforts to place the child with the mother; (3) the trial court
abused its discretion by finding permanent foster care was the
appropriate permanency planning goal; and (4) the trial court
abused its discretion by placing the child in the legal custody
of the Department. 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.
The record on appeal includes, among other items, reports
from the court-appointed special advocate and a written
statement of facts summarizing the testimony given below. "On
review, '[a] trial court is presumed to have thoroughly weighed
all the evidence, considered the statutory requirements, and
made its determination based on 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) (citations omitted). We view the
evidence in the light most favorable to the prevailing party
below, affording it reasonable inferences fairly deducible
therefrom. The trial court's judgment, based on evidence heard
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ore tenus, will not be disturbed on appeal unless plainly wrong
or without evidence to support it. Id.Under Code § 63.1-206.1, a court may authorize the
placement of a child in permanent foster care. The statute
provides, in pertinent part, as follows:
A court shall not order that a child be
placed in permanent foster care unless it
finds that (i) diligent efforts have been
made by the local department to place the
child with his natural parents and such
efforts have been unsuccessful, and (ii)
diligent efforts have been made by the local
department to place the child for adoption
and such efforts have been unsuccessful or
adoption is not a reasonable alternative for
a long-term placement for the child under
the circumstances.
Code § 63.1-206.1(A). The statutory requirements must be proved
by a preponderance of the evidence. See generally Padilla v.
Norfolk Div. of Soc. Serv., 22 Va. App. 643, 645, 472 S.E.2d
648, 649 (1996). Cf. Code § 16.1-283 (clear and convincing
evidence required to support a petition to terminate parental
rights).
Issues I and II
The mother contends that the Department failed to present
sufficient credible evidence that the child was neglected, that
reasonable efforts were made to prevent the removal of the child
from her home, that no less drastic alternatives were available,
or that the Department made diligent but unsuccessful efforts to
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place the child with the mother. We find sufficient evidence
supports the trial court's decision.
The Department first removed the child from the home in May
1994 pursuant to a Preliminary Removal Order and following a
founded complaint of neglect. In September 1994, when the
Department returned the child and her brother home, the mother
was directed to avoid alcohol, consume only prescribed
medications, and attend counseling. The Department obtained
another Order and removed the children again in December 1994
following a founded complaint that they were left unattended.
The Department arranged in-home counseling, which the therapist
discontinued because the mother refused to acknowledge she
needed detoxification. The Department again returned the
children home in October 1996 and provided additional home-based
therapy to the mother and the child to assist with continuing
power struggles between them. In February 1998, the child
attempted suicide and was hospitalized for ten days. Conflict
between the mother and the child continued after the child
returned home. The mother then entered into a voluntary
non-custodial foster care placement agreement. The child was
placed in a foster home. When the mother sought to cancel the
agreement, the Department sought a judicial determination of the
appropriate custody.
The mother conceded at trial that she had problems in the
past with alcohol and drug abuse, arising in part from pain
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medications she took following a serious accident. She also
acknowledged that she could not think clearly and had difficulty
parenting while she was abusing her medications and alcohol.
The mother testified that she successfully overcame her problems
of substance abuse and was now capable of parenting. The mother
called Dr. Burns, who testified that he began treating the
mother in July 1998. He recommended that she enter
detoxification and pain management programs. The mother did not
enter either program but accomplished the goals of these
programs. He regulated the mother's prescriptions and saw no
evidence of drug or alcohol abuse during the time he treated
her. He also conducted drug screening. He had not treated the
mother since January 1999 although she saw another doctor in the
same office.
The Department's witnesses testified that permanent foster
care was the goal chosen because there was a bond between the
mother and child that made adoption inappropriate and because
prior reunifications had failed. Bill Aiken testified that he
provided home-based therapy to the family during the period of
October 1997 through September 1998. Aiken testified that there
was discord in the family during the time the mother was married
to Ambrose Hash, from whom she was now divorced. In addition,
the record included a psychological report prepared by Dr. E.
Wayne Sloop in September 1998 which stated that the mother
showed "evidence of personality disorder and cognitive
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problems." Dr. Sloop opined that these problems "will certainly
pose problems and difficulties as [mother] attempts to function
as a parent for a strong-willed, perhaps somewhat volatile and
emotionally labile teen-aged daughter, but they do not combine
to produce a conclusion that she is unable to minimally parent
her daughter." The trial judge also spoke with the child in
chambers.
"When addressing matters concerning a child . . . the
paramount consideration of a trial court is the child's best
interests." Logan, 13 Va. App. at 128, 409 S.E.2d at 463.
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. A trial
court's determination of matters within its
discretion is reversible on appeal only for
an abuse of that discretion, and a trial
court's decision will not be set aside
unless plainly wrong or without evidence to
support it.
Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795
(1990) (citations omitted). The record demonstrates that the
mother's substance abuse had impaired her ability to parent in
the past and that additional problems exist beyond those
connected with substance abuse. The Department's previous
attempts to return the child home had not been successful,
despite in-home therapy services. The child's suicide attempt
occurred after she had been in the home for more than one year.
The trial court had the opportunity to see and hear the
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witnesses testify and to speak in chambers with the child. On
review, we cannot say that the trial court's determination that
the child's best interests were served by placement in permanent
foster care was an abuse of its discretion or unsupported by
evidence.
Issues III and IV
The mother contends that the trial court abused its
discretion by finding permanent foster care was the appropriate
goal for the child. Permanent foster care is not "a less
drastic form" of termination of parental rights, "but rather is
a different and distinct alternative." Martin v. Pittsylvania
County Dep't of Social Servs., 3 Va. App. 15, 23, 348 S.E.2d 13,
17 (1986). See also Stanley v. Fairfax County Dep't of Social
Servs., 10 Va. App. 596, 605-06, 395 S.E.2d 199, 204 (1990),
aff'd, 242 Va. 60, 405 S.E.2d 621 (1991). Evidence demonstrated
that the bond between the mother and child made adoption not a
reasonable alternative in this case. See Code
§ 63.1-206.1(A)(ii). The evidence also indicated, however, that
the child needed permanency and stability. The record indicates
that the child's life prior to her placement in foster care
lacked consistent, responsible parenting. In foster care, her
life was demonstrably more stable. While the mother is to be
commended for gaining control over her substance abuse, the
difficulties between the child and the mother arose from more
than a single cause and encompassed more than just one area of
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conflict. The child is entitled to remain in an environment
that is conducive to her health and well-being. Therefore, the
trial court did not abuse its discretion by finding permanent
foster care is the appropriate goal for this child or by placing
the child in the legal custody of the Department.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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