Shirley Malave v. FairfaxCo.Dept.of Family Services ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
SHIRLEY MALAVE
MEMORANDUM OPINION * BY
v. Record No. 2708-98-4 JUDGE JAMES W. BENTON, JR.
OCTOBER 19, 1999
FAIRFAX COUNTY DEPARTMENT
OF FAMILY SERVICES
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Stanley P. Klein, Judge
Elizabeth D. Teare (Surovell, Jackson,
Colten & Dugan, P.C., on briefs), for
appellant.
Darrell D. Jackson, Assistant County Attorney
(David P. Bobzien, County Attorney; Robert
Lyndon Howell, Deputy County Attorney;
Dennis R. Bates, Senior Assistant County
Attorney, on brief), for appellee.
Ronald C. Zabel, Guardian ad litem, for the
minor child.
Shirley Malave appeals from a decision terminating her
parental rights. Malave contends the trial judge erred by
finding that the Fairfax County Department of Family Services
presented clear and convincing evidence (1) that she failed,
without good cause, to maintain contact with her child and plan
for his future for six months after his placement in foster
care; (2) that she failed, without good cause, to remedy
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
substantially within twelve months the problems leading to the
child's placement in foster care; (3) that it was not reasonably
likely the conditions which led to placing the child in foster
care could be substantially corrected to allow his safe return
within a reasonable period of time; and (4) that the Department
adequately investigated placing the child with relatives. We
affirm the decision.
I.
"When addressing matters concerning a child, including the
termination of a parent's residual parental rights, the
paramount consideration of a trial [judge] is the child's best
interests." Logan v. Fairfax County Dep't of Human Development,
13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991). Thus, the
following principles guide our review.
"In matters of a child's welfare, trial
[judges] are vested with broad discretion in
making the decisions necessary to guard and
to foster a child's best interests." The
trial [judge'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).
"Code § 16.1-283 embodies 'the statutory scheme for the
. . . termination of residual parental rights in this
Commonwealth' . . . [and] '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.
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Reed, 20 Va. App. 306, 311, 456 S.E.2d 538, 540 (1995)
(citations omitted). Applying the provisions of that statute,
the trial judge ruled that the Department presented clear and
convincing evidence sufficient to terminate Malave's parental
rights under Code § 16.1-283, subsections (B)(1), (B)(2), (C)(1)
and (C)(2). Code § 16.1-283(B)(1) and (2) provide, in pertinent
part, that the parental rights of a parent of a child placed in
foster care, after a judicial finding of neglect or abuse, may
be terminated if the trial judge finds clear and convincing
evidence of the following:
1. The neglect or abuse suffered by such
child presented a serious and substantial
threat to [the child's] life, health or
development; and
2. It is not reasonably likely that the
conditions which resulted in such neglect or
abuse can be substantially corrected or
eliminated so as to allow the child's safe
return to [the] parent or parents within a
reasonable period of time. In making this
determination, the court shall take into
consideration the efforts made to
rehabilitate the parent or parents by any
public or private social, medical, mental
health or other rehabilitative agencies
prior to the child's initial placement in
foster care.
Prima facie evidence of the conditions set out in Code
§ 16.1-283(B)(2) includes proof that the parent habitually
abused drugs "to the extent that proper parental ability has
been seriously impaired and the parent, without good cause, has
not responded to or followed through with recommended and
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available treatment which could have improved the capacity for
adequate parental functioning;" or that the parent, without good
cause, failed to "respon[d] to or follo[w] through with
appropriate, available and reasonable rehabilitative efforts on
the part of social, medical, mental health or other
rehabilitative agencies designed to reduce, eliminate or prevent
the neglect or abuse of the child."
Code § 16.1-283(C)(1) and (2) provide that the parental
rights of a parent whose child is in foster care may be
terminated if the trial judge finds by clear and convincing
evidence that the best interests of the child are so served and
that the following circumstances exist:
1. The parent . . ., without good cause,
[has] failed to maintain continuing contact
with and to provide or substantially plan
for the future of the child for a period of
six 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 or
parents have 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; or
2. The 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
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and appropriate efforts of social, medical,
mental health or other rehabilitative
agencies to such end. Proof that the parent
or parents, without good cause, have 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 or parents 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.
The evidence established that Malave's son was placed in
foster care in 1997, when he was ten years of age, after Child
Protective Services found him wandering the streets on a
Saturday morning. The previous Friday, no one came for the
child at his school. The child could not give his last name,
the name of his parent, or his address. The evidence proved
that Malave resided in New York and that the child had lived
with two of his maternal aunts in Virginia for two periods of
time, most recently since the age of eight. By an order entered
January 21, 1998, a judge determined that the child had been
neglected. Malave failed to appear at that hearing. The trial
judge entered the order terminating Malave's parental rights on
November 4, 1998.
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I. Failure to Maintain Contact
Proof that a parent, without good cause, failed to
communicate on a continuing basis with a child in foster care
for a period of six months is prima facie evidence of the
grounds for termination under Code § 16.1-283(C)(1). Malave
admitted that she did not communicate by letter or telephone or
visit with her son after he was placed in foster care in June
1997. In an effort to explain her failure to visit her son,
Malave testified that the social workers would not schedule
visits for her. Dawn Harvey, a social worker, testified,
however, that although Malave requested visitation several
times, Malave only requested those visits after a court hearing
commenced and indicated that she was returning to New York
shortly after the hearings. Harvey testified that the visits
could not be scheduled at such short notice. Although Harvey
offered to forward any cards or letters to the child, Malave
never sent anything for the child. The record supports the
trial judge's finding that the Department presented clear and
convincing evidence under Code § 16.1-283(C)(1) that Malave
failed to maintain contact with the child for a period exceeding
six months.
II. Failure to Remedy Problems Leading to Foster Care
Under the initial foster care plan, Malave was ordered to
complete a parenting class and to undergo evaluations for mental
health, drug, and alcohol use. In February 1998, eight months
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after entry of that order, Malave began a counseling program in
New York. Malave was dismissed from the program because she
failed to attend regularly and could not pay. The record
indicates that Malave refused to work in a thrift shop as a
means to cover the cost of the program. Malave presented
evidence that she submitted an application to enter another
program. She submitted that application, however, only one week
before the October 1998 hearing. She admitted that she failed
to attend parenting classes.
When questioned at trial, Malave admitted that she did not
know what interests her child had. She said that "kids change"
and that she only knew what interested him when he last lived
with her in 1995.
Despite the passage of at least seventeen months, Malave
failed to complete any of the requirements ordered by the trial
judge or to demonstrate meaningfully a desire to reestablish a
relationship with the child. Malave failed to complete any drug
treatment program. Malave's explanation that she could not
complete the program because one of her children contracted
poison ivy and another sprained an ankle was found to be
inadequate by the trial judge. The trial judge specifically
noted that, until February 1998, Malave had taken "no action at
all to try to do anything to rectify the situation, . . . that
caused the initial placement, or caused the continuation of the
placement."
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The trial judge believed the testimony of the guardian ad
litem and the social worker that Malave did not intend to comply
with the requirements of the foster care plan because she did
not wish to pursue custody. "It is clearly not in the best
interest 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. Dep't of Soc. Servs., 10 Va.
App. 535, 540, 394 S.E.2d 492, 495 (1990).
We hold, therefore, that the record supports the trial
judge's ruling that the Department established by clear and
convincing evidence under Code § 16.1-283(C)(2) that Malave,
without good cause, failed to remedy the conditions leading to
the child's foster care placement.
III. Substantial Correction of Conditions
Malave admitted that she used cocaine at the time the child
was born and that she used cocaine on July 23, 1998. She also
admitted that allegations of drug use resulted in the removal of
three other children from her custody by New York protective
services. While she denied that she continued to use drugs, the
trial judge did not find her testimony to be credible.
The Department proved that Malave failed to follow through
with appropriate, available, and reasonable rehabilitative
efforts to prevent or eliminate the neglect. Therefore, we find
no error in the trial judge's ruling that the Department proved
by clear and convincing evidence under Code § 16.1-283(B)(2)
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that the conditions which caused the neglect could not be
substantially corrected within a reasonable period of time so as
to allow the child's safe return to Malave.
IV. Placement with Relatives
"Before termination of parental rights by the court, the
agency seeking termination has an affirmative duty to
investigate all reasonable options for placement with immediate
relatives." Sauer v. Franklin County Dep't of Soc. Servs., 18
Va. App. 769, 771, 446 S.E.2d 640, 641 (1994). However, the
Department is not required "in every case to investigate the
home of every relative . . . as a potential placement." Id. at
771, 446 S.E.2d at 642.
According to Malave's testimony, the child lived with two
of her sisters during the time he was in Virginia. The record
establishes that he was placed in foster care while in the
custody of at least one of these aunts. The trial judge noted
that these aunts "were the same people who had allowed the child
to be on his own . . . in a position where any ten-year-old or
eleven-year-old child potentially could have been in grave
danger." The Department did not find either of those aunts to
be suitable, and neither sought custody.
The Department investigated the possibility of placing the
child with a third aunt. Although that aunt initially sought
custody, she later indicated she could not accept the placement
because she already had other relatives in her care. The social
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workers testified that they also determined that this aunt could
not meet the child's needs due to the number of other children
in her care. Therefore, the evidence supports the trial judge's
conclusion that the Department adequately considered placement
with relatives.
The trial judge found that termination of Malave's parental
rights was in the child's best interests and that the Department
presented clear and convincing evidence sufficient to meet the
statutory requirements of Code § 16.1-283. The record supports
those findings. Accordingly, we affirm the decision.
Affirmed.
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