Wendell W. Terry v. Franklin Co. D.S.S. ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
WENDELL W. TERRY
MEMORANDUM OPINION *
v. Record No. 1527-99-3 PER CURIAM
OCTOBER 5, 1999
FRANKLIN COUNTY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
William N. Alexander, II, Judge
(Timothy W. Allen, on brief), for appellant.
Appellant submitting on brief.
(Sarah A. Rice; Davis, Davis, Davis & Rice,
on brief), for appellee. Appellee
submitting on brief.
Wendell W. Terry (Terry) appeals the decision of the circuit
court terminating his parental rights to his son. Terry contends
that the Franklin County Department of Social Services (DSS)
failed to present clear and convincing evidence sufficient to
satisfy the requirements of Code § 16.1-283. Terry specifically
argues that the DSS failed to offer him sufficient services to
help him regain custody of his son. We conclude that this appeal
is without merit. Accordingly, we affirm the decision of the
trial court.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
"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 Development,
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." 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. (citations omitted). "Code § 16.1-283 embodies 'the
statutory scheme for the . . . termination of residual parental
rights in this Commonwealth' [which] . . . '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. Reed, 20 Va. App. 306, 311, 456
S.E.2d 538, 540 (1995) (citations omitted).
The trial court found that DSS presented sufficient
evidence under Code § 16.1-283(C) to terminate Terry's parental
rights. Under Code § 16.1-283(C)(2) (Michie Cum Supp. 1998),
the parental rights of a child placed in foster care may be
terminated if the court finds by clear and convincing evidence
that it is in the best interests of the child and that:
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
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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
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.
DSS received custody of the child in March 1996 following
Terry's release from prison and positive drug test. When DSS
sought to take the child into custody, the worker was unable to
locate the child at school. The child was at home although it
was a school day.
Under the initial foster care plan, Terry was required to
obtain and maintain suitable housing, participate in drug abuse
counseling, and submit to drug screening. Terry's visitation
rights were contingent on his negative drug tests. Corrine
Krouse, the DSS social worker, reviewed the foster care plan
with Terry prior to its approval by the court. Krouse told Terry
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that she could work with him to obtain employment, housing, and
substance abuse training.
The evidence established that Terry never complied with the
requirements of the foster care plan and refused any assistance
offered by DSS. DSS arranged for drug counseling, but Terry
refused to participate. Krouse drove to Terry's trailer
repeatedly in the first month his son was in foster care in her
attempts to keep in contact with him, with no response from
Terry. Terry refused to provide DSS with current addresses or
telephone numbers where he might be reached. DSS offered Terry
assistance with transportation and housing, which he rejected. He
disrupted his son's initial foster care placement by going to the
foster home without permission and while under the influence of
alcohol. Although the district court issued an order requiring
Terry to make no contact with his son unless arranged through DSS,
Terry continued to have unauthorized visits with his son at a new
foster home, at school, and at church. DSS also attempted to
place the child with relatives when, after two years, "minuscule
progress [had] occurred with this case."
At the hearing, Terry admitted that he did not have
permanent housing. He also testified that he never received
drug counseling except for what he received while incarcerated.
Terry tested positive for cocaine at the time of the hearing,
despite testifying that he had not to his knowledge used cocaine
since March 1996. Terry's claim that he tried to work with DSS
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was refuted by DSS workers, who stated that Terry refused to
contact them or provide them with any means to contact him.
There was no question that Terry failed to comply with the
requirements of the foster care plan. "The law does not require
the [DSS] to force its services upon an unwilling or
disinterested parent." Barkey v. Commonwealth, 2 Va. App. 662,
670, 347 S.E.2d 188, 192 (1986).
The child had been in his current foster care placement for
more than three years. While there is evidence that the child
and Terry loved each other, the evidence also demonstrates that
the child was thriving in his current placement. The child had
recently shown signs of defiance, which the foster mother
associated with the unauthorized contacts with Terry. The
foster parents were anxious to adopt the child. The trial court
found that the termination of Terry's parental rights was in the
child's best interests.
Evidence supports the trial court's determination that DSS
presented clear and convincing evidence satisfying the
requirements of Code § 16.1-283(C)(2). Accordingly, the decision
of the circuit court is affirmed.
Affirmed.
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