Timothy Rome Baker, Jr. v. Fredericksburg DSS ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Lemons ∗
Argued at Richmond, Virginia
TIMOTHY ROME BAKER, JR.
MEMORANDUM OPINION ∗∗ BY
v. Record No. 1089-99-2 JUDGE DONALD W. LEMONS
MARCH 21, 2000
FREDERICKSBURG DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
John W. Scott, Jr., Judge
(Donald R. Skinker, on brief), for appellant.
Appellant submitting on brief.
Joseph A. Vance, IV (Timothy W. Barbrow;
Joseph A. Vance, IV & Associates, on brief),
for appellee.
Timothy Rome Baker, Jr. appeals the decision of the circuit
court terminating his parental rights to his three children,
Antonio Lewis, Shakela Lewis and Ervin Lewis. On appeal, Baker
contends that the Fredericksburg Department of Social Services
(DSS) failed to prove by clear and convincing evidence that
Baker is not reasonably likely to correct or eliminate the
∗
Justice Lemons prepared and the Court adopted the opinion
in this case prior to his investiture as a Justice of the
Supreme Court of Virginia.
∗∗
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
conditions that resulted in the abuse of his children so as to
allow their safe return to him. Finding no error, we affirm.
I. BACKGROUND
Three children were born to Baker and Teresa Lewis:
Antonio in 1989, Shakela in 1991 and Ervin in 1993. The
evidence revealed that Baker was serving jail time for
possession of cocaine with intent to distribute on February 21,
1996 when DSS intervened because of concerns that the youngest
child had been sexually abused. Further investigation revealed
that the youngest child was "demonstrating very sexualized
behavior with other children" in his Head Start program, and a
medical examination indicated that he had been sexually abused.
The medical examination showed that the second child had been
sexually abused vaginally and anally. The oldest child was
characterized as being aggressive, "fail[ing] to comply in the
classroom" and as "a very angry young man." He was also
described as having "sexualized behaviors" such as "sexual talk"
and "knowledge."
To prevent removal, Lewis was offered various services,
including homebuilder services, child protective services, a
referral to individual counseling, medication management and a
parenting skills class. Since Lewis could not assure the
children's safety in her home, however, DSS removed the children
from her custody on October 24, 1996 and placed them into three
separate foster homes.
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In December of 1996, DSS designed a foster care plan for
Lewis and the children. The plan called for her to obtain
full-time employment, attend the Fresh Start program, complete
parenting classes, undergo individual counseling and a
psychological evaluation, make her home safe by removing other
adults from the home, secure independent housing and learn how
to provide necessary medications as directed. The goal of the
plan was for the children to be returned home.
Baker was released from prison in February of 1997, secured
part-time employment with a landscaping company and moved into a
residence with Lewis. Although the service plan referred only
to Lewis, Baker appeared in the juvenile court on September 11,
1997, and indicated that he had no objection to the foster care
plan. In the meantime, Baker had supervised and unsupervised
visitation rights with his children.
In February of 1998, the goal of the foster care plan was
changed to adoption based on the parents' failure to establish
appropriate housing over the previous one and a half years,
Lewis' inability to protect the children from future abuse,
Baker's failure to complete any item listed in the initial
service plan, the parents' failure to address the issues leading
to the removal of their children, Lewis' inability to set limits
and interact with her children during visits and Baker's
infrequent visits since his release from jail.
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In April of 1998, Baker attended two classes on the
traumatic effects of sexual abuse on children and one counseling
session with a mental health therapist. Baker attended eight of
the nine weekly basic parenting classes between August 25, 1998
and October 20, 1998. Georgette Cromartie, the teacher of the
basic parenting classes, testified that Baker's score on a
parenting skills test improved from forty-two percent prior to
the class to seventy percent after completion of the class. She
also noted, however, that any score less than eighty percent was
not a passing grade and was cause for concern. During the nine
weeks of classes, Cromartie told her students that anyone not
scoring an eighty percent on the post-test needed to retake the
class, and she testified that the client was responsible for
making the arrangements for taking the class again. When Baker
received his score, Cromartie told him that she was not finished
working with him. Baker did not retake the class.
Mental health therapist Florence Duke provided counseling
to Baker and Lewis but testified that Baker did not undergo any
of the evaluations required under the foster care plans. Baker
told her that he could not afford to comply with the
requirements. Dr. Susan Rosebro, the counselor who conducted a
parent competency evaluation of Lewis, testified, however, that
funding was provided for that evaluation and that Baker failed
to contact her. Furthermore, Baker did not attend the Fresh
Start program as required by DSS's service plan.
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DSS had concerns about Baker's ability to provide care and
protection of his children. Mary Elizabeth McGhee, the
children's counselor since November of 1996, testified that she
would be concerned for their welfare if they were in an
environment of inadequate supervision or structure and that the
children were making progress in their current living
situations. Cromartie testified that the children needed a safe
and stable environment, and she expressed concern that Baker and
Lewis resided with "someone that they didn't know the name of."
The children's high level of needs further required that their
care provider have a high level of parenting skills and a highly
structured environment, neither of which, in DSS's opinion,
Baker could provide.
At the February 3, 1999 hearing, Baker was employed full
time with health and dental benefits for the children, but there
was no evidence that stable housing was obtained. Baker and
Lewis were evicted in September 1998 for nonpayment of rent. At
the time of the hearing, the couple was renting a bedroom in a
house from a woman and her adult godson.
II. SUFFICIENCY OF THE EVIDENCE
Pursuant to Code § 16.1-283(B)(2), the parental rights of
parents of abused children may be terminated if the court finds
by clear and convincing evidence that, inter alia, it is not
reasonably likely that the conditions which resulted in the
neglect or abuse can be substantially corrected or eliminated so
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as to allow the children's safe return to their parents within a
reasonable period of time. Proof that "[t]he parent or parents,
without good cause, have not responded to or followed 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" is prima facie evidence of the conditions
set out in Code § 16.1-283(B)(2). Code § 16.1-283(B)(2)(c).
"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). In making its determination, the
trial court must remember that
the termination of the legal relationship
between parent and child is a grave
proceeding. A court order terminating
parental rights renders the parent "a legal
stranger to the child" and severs "all
parental rights." Shank v. Dept. of Social
Services, 217 Va. 506, 509, 230 S.E.2d 454,
457 (1976). [The Supreme Court of
Virginia's] prior decisions clearly indicate
a respect for the natural bond between
children and their natural parents. The
preservation of the family, and in
particular the parent-child relationship, is
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an important goal for not only the parents
but also the government itself. While it
may be occasionally necessary to sever the
legal relationship between parent and child,
those circumstances are rare. Statutes
terminating the legal relationship between
parent and child should be interpreted
consistently with the governmental objective
of preserving, when possible, the
parent-child relationship.
Weaver v. Roanoke Dept. of Human Res., 220 Va. 921, 926, 265
S.E.2d 692, 695 (1980).
On appeal, we presume that the trial court "thoroughly
weighed all the evidence, considered the statutory requirements,
and made its determination based on the child's best interests."
Farley, 9 Va. App. at 329, 387 S.E.2d at 796. We view the
decision in the light most favorable to DSS as the party
prevailing below, and its evidence is afforded all reasonable
inferences fairly deducible therefrom. See Logan, 13 Va. App.
at 128, 409 S.E.2d at 463. 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. (citation omitted).
This record clearly demonstrates that the children had
special needs because of their history of abuse and required a
greater amount of supervision. According to the testimony of
the children's counselor, to meet the needs of all three
children, Baker and Lewis would have to maintain a highly
structured and supervised environment, support and cooperate
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with the children's counselors and teachers, support the
children socially, firmly set limits with respect to the
children's behavior, support the children in the area of sexual
development and become involved in school activities. The goal
of DSS's initial foster care plan was to return the children to
their parents. Among other requirements, the parents were to
take a parenting skills class, make their home safe for the
children by removing other adults from the home, attend
individual counseling, and obtain full-time employment and
independent housing.
Although Baker was released from prison in February of
1997, when the foster care plan's goal changed to adoption in
February of 1998, he had not yet complied with any of the plan's
requirements. While Baker eventually took a sufficient number
of parenting skills classes, the evidence revealed that he
failed to achieve a passing score on the post-test and did not
retake the class when it was made clear to him that he should.
Baker did not undergo any of the evaluations required under the
foster care plans because he claimed that he could not afford
them. Dr. Rosebro, however, testified that funding was
available. Neither parent completed the Fresh Start program as
prescribed by the service plan.
The record also demonstrates that Baker and Lewis were
unable to provide both the necessary support and structured
environment their children need. The parents failed to address
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the issues that led to the removal of their children. With
respect to Lewis, Dr. Rosebro questioned her ability to protect
her children from future abuse. Furthermore, Baker visited his
children "on a very limited basis" since his release from
prison. Finally, although Baker was employed full time when the
hearing occurred, there was no evidence that the parents had
obtained stable housing. Baker and Lewis had been evicted in
September of 1998 for nonpayment of rent from a home where they
resided with people whom they did not know. By the February
hearing, Lewis testified that she and Baker rented a bedroom in
the house of an older woman and her adult godson. Baker and
Lewis did not know the godson.
Based upon all of the information available to DSS, it was
concerned that the children would not be protected any better on
February 11, 1998 than they had been in October of 1996. The
children were reported to have made "remarkable" progress in the
foster care system and advancements had been made in the areas
of behavioral modification and sexual behavior and that
heightened parenting skills were necessary to maintain this
progress. It was further reported that the children continue to
be "high needs" children. The children's counselor testified
that the children's behavioral problems have improved with
counseling and that their social skills are improving.
It is noteworthy that Baker does not attack the findings
that the children were neglected and abused. Nor does he deny
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that such neglect and abuse "present[s] a serious and
substantial threat to [their] li[v]e[s], health or development."
Code § 16.1-283(B)(1). Baker only argues that the proof fails
to show that it is not reasonably likely that the condition that
resulted in the neglect and abuse was not substantially
corrected or eliminated so as to allow their safe return to his
custody. The evidence clearly and convincingly demonstrates
otherwise.
Finding no error, the order of the trial court terminating
Baker's parental rights is affirmed.
Affirmed.
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