Angela Renee Tusing v. Harrisonburg Rockingham Social Services District ( 2013 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Chafin and Senior Judge Annunziata
UNPUBLISHED
ANGELA RENEE TUSING
MEMORANDUM OPINION*
v. Record No. 1465-13-3 PER CURIAM
DECEMBER 27, 2013
HARRISONBURG ROCKINGHAM
SOCIAL SERVICES DISTRICT
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Thomas J. Wilson, IV, Judge
(W. Andrew Harding, on brief), for appellant. Appellant submitting
on brief.
(Kim Van Horn Gutterman, Assistant County Attorney; Sheila R.
Keesee, Guardian ad litem for the minor child, on brief), for
appellee. Appellee and Guardian ad litem submitting on brief.
Angela Renee Tusing (mother) appeals an order terminating her parental rights to her child,
A.T. Mother argues the trial court erred by finding there was sufficient evidence to terminate her
parental rights pursuant to Code § 16.1-283(B) and changing the foster care plan goal to adoption
where the elements of the statute were not established. Upon reviewing the record and briefs of the
parties, we conclude the trial court did not err. Accordingly, we affirm the decision of the trial
court.
We view the evidence in the light most favorable to the prevailing party below and grant to
it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax Cnty. Dep’t of Human
Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
A.T. was born on April 2, 2012. Mother also had two children who were older than A.T. In
2010, the two older children were adjudicated as abused and neglected by mother and were placed
in the custody of a relative.
On July 3, 2012, mother had a scheduled meeting with her probation and parole officer. She
arrived late for the meeting and tested positive for marijuana and methamphetamine. Mother left
two of her children, including the infant A.T., in her car with a friend during the appointment. A
probation officer approached mother’s car and saw the two children were alone in the car which had
been left with the engine running. The probation officer located mother’s friend “across the street”
and the friend admitted she had used drugs that morning. The friend said mother was aware that she
had used drugs that day. The car also contained a drug smoking device and bottles of urine.
Marijuana was located in A.T.’s diaper bag. A probation officer testified that when she questioned
mother about the bottles containing urine, mother did not deny she had used “someone else’s urine”
for drug tests in the past, but she stated she did not do so on that date. A.T. was placed into foster
care on July 3, 2012.
Mother pled guilty to two counts of felony child endangerment arising from the July 3, 2012
incident and she was incarcerated until October 2012. When she was released, Harrisonburg
Rockingham Social Services District (HRSSD) advised mother that in order to regain custody of
A.T., she needed to remain substance free, establish stable housing and employment, maintain
contact with HRSSD and improve her parenting skills. In addition, HRSSD offered mother
substance abuse counseling, parenting classes, individual and group counseling, and a psychological
evaluation. Mother participated in the psychological evaluation, but she failed to complete the other
offered services. She also missed numerous scheduled drug screenings.
In January 2013, an HRSSD employee informed mother that if she could demonstrate
sobriety and maintain contact with HRSSD for six weeks, she could begin visitation with A.T.
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However, mother refused to participate in several drug screens that month. On February 1, 2013,
HRSSD informed mother she had to complete a hair follicle drug screen by 12:00 p.m. that day.
Mother reported for the test in the afternoon, and her hair appeared to be chemically treated. She
passed the hair follicle drug screen on that date. However, on February 6, 2013, mother was
arrested and charged with methamphetamine possession. Mother also possessed drug paraphernalia
and a device that appeared to be used for the storage of urine. At the time of the trial in this case,
the drug charges were still pending and mother had not been sentenced for the two felony child
endangerment charges.
HRSSD submitted a new foster care plan for A.T. with the goal of adoption. While mother
was in jail, substance abuse treatment was available to her, but she failed to participate in the
program.
At the time of trial, A.T. had been in foster care for eleven months. A social worker testified
the foster family was loving and committed and was meeting the needs of the child. The foster
family was interested in adopting A.T. The guardian ad litem testified A.T. was “very responsive to
the [foster] family,” and he was “thriving” in their care. The guardian ad litem opined that adoption
was in the child’s best interests. Mother had not seen A.T. since he was removed from her custody
on July 3, 2012.
Prior to the July 3, 2012 incident, mother had several convictions for drug offenses dating
back to 2004. HRSSD had been involved with the family since 2009, and they experienced
difficulty maintaining contact with mother because she was unavailable by telephone and often
cancelled or rescheduled appointments. In 2011 and 2012, HRSSD referred mother to several
substance abuse programs, but she failed to complete any of them.
“Where, as here, the court hears the evidence ore tenus, its finding is entitled to great weight
and will not be disturbed on appeal unless plainly wrong or without evidence to support it.” Martin
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v. Pittsylvania Cnty. Dep’t of Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986) (citations
omitted). When considering termination of parental rights, “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.
Termination of parental rights under Code § 16.1-283(B) requires proof, based upon clear
and convincing evidence, that termination is in the best interests of the child, “the neglect or abuse
suffered by such child presented a serious and substantial threat to his life, health or development,”
and “[i]t 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 his parent . . . within a
reasonable period of time.” Code § 16.1-283(B)(1) and (2). “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.” Code § 16.1-283(B)(2).
The trial court found mother’s continuous drug use was “the major issue” in the case. The
court found mother had not responded to or followed through with “appropriate, available and
reasonable rehabilitation efforts” that had been offered to her by several agencies--HRSSD, the
probation department, and the Department of Corrections while she was incarcerated. The trial
court noted mother had drug charges as recent as February 2013, and, as far back as eight years
earlier, mother had been offered services and programs to deal with substance abuse issues. The
trial court found mother showed a pattern of evading or avoiding drug screens and she continued to
use drugs even while she was on probation. Mother missed appointments with her probation officer
and had numerous positive drug screenings. The trial court observed that in January 2013, HRSSD
presented mother with a “manageable goal” of remaining drug free and compliant for six weeks in
order to have visitation with A.T. Yet mother could not meet that goal. Furthermore, the guardian
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ad litem expressed concerns about A.T.’s development while in mother’s custody and opined that
termination of mother’s parental rights was in the best interests of the child.
“[S]ubsection B [of Code § 16.1-283] ‘speaks prospectively’ and requires the circuit court to
make a judgment call on the parent’s ability, following a finding of neglect or abuse, to substantially
remedy the underlying problems.” Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257,
270-71, 616 S.E.2d 765, 772 (2005) (quoting City of Newport News Dep’t of Soc. Servs. v.
Winslow, 40 Va. App. 556, 562-63, 580 S.E.2d 463, 466 (2003)).
A parent’s “‘past actions . . . over a meaningful period serve as good indicators of what the
future may be expected to hold.’” Winfield v. Urquhart, 25 Va. App. 688, 695-96, 492 S.E.2d 464,
467 (1997) (quoting Linkous v. Kingery, 10 Va. App. 45, 46, 390 S.E.2d 188, 194 (1990)).
Based on this record, the trial court was entitled to conclude mother had a substance abuse
addiction that seriously impaired her parenting abilities and mother had not responded to or
followed through with recommended and available treatment which could have improved her
capacity for adequate parental functioning. The record also supports a finding that, as a result of
mother’s past and continuing drug use, A.T. suffered neglect or abuse that “presented a serious and
substantial threat to his life, health or development,” particularly when he was left in a running car
with a friend whom mother knew had used drugs that day. Also from the evidence of mother’s
failure to remain drug free and respond to available substance abuse services over an eight-year time
period, the trial court could conclude it is not reasonably likely that the conditions which resulted in
the neglect and abuse of A.T. can be substantially corrected or eliminated so as to allow his safe
return to mother within a reasonable period of time. Indeed, in 2010, mother lost custody of A.T.’s
older siblings and they had not been returned to her custody at the time of trial. Mother had not
seen A.T. since he was removed from her care in July 2012. In addition, at the time of trial, mother
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was incarcerated and she faced the possibility of being sentenced to years of incarceration for the
two charges of child endangerment, a pending drug charge, and a potential probation violation.
Furthermore, A.T. was responsive and thriving with the foster care family. Moreover, “[i]t
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 his responsibilities.” Kaywood v. Halifax
County Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990).
In determining what is in the best interests of a child, this Court has stated
a court must evaluate and consider many factors, including the age
and physical and mental condition of the child or children; the age
and physical and mental condition of the parents; the relationship
existing between each parent and each child; the needs of the child
or children; the role which each parent has played, and will play in
the future, in the upbringing and care of the child or children; and
such other factors as are necessary in determining the best interests
of the child or children.
Barkey v. Commonwealth, 2 Va. App. 662, 668, 347 S.E.2d 188, 191 (1986).
The trial court concluded it was in the child’s best interests to terminate mother’s parental
rights. The record supports the court’s determination.1
Accordingly, we affirm the decision of the trial court.
Affirmed.
1
Mother also contends the trial court erred in approving the foster care plan “change in
goal” to adoption. “A preponderance-of-the-evidence standard governs judicial review of the
foster care plan recommendations, while the more stringent clear-and-convincing-evidence
standard applies to the ultimate termination decision.” Najera v. Chesapeake Div. of Soc. Servs.,
48 Va. App. 237, 240, 629 S.E.2d 721, 722 (2006). It logically follows, therefore, that our
conclusion that the trial court did not err in terminating mother’s parental rights under the more
stringent clear-and-convincing-evidence standard set forth in Code § 16.1-283(B) and (C)
“necessarily subsumes” this aspect of mother's appeal. Toms, 46 Va. App. at 265 n.3, 616
S.E.2d at 769 n.3.
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