Guadalupe Flores v. Richmond Department of Soc. Ser ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
GUADALUPE FLORES
MEMORANDUM OPINION *
v. Record No. 0660-97-2 PER CURIAM
SEPTEMBER 16, 1997
RICHMOND DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge
(Debora Cress Embrey, on briefs), for
appellant.
(Sandra L. Karison, Assistant City Attorney;
Robert D. Jacobs, Guardian ad litem; City
Attorney's Office, on brief), for appellee.
Guadalupe Flores appeals the decision of the circuit court
terminating her residual parental rights to her four children.
Flores contends that the trial court erred by (1) finding that
the Richmond Department of Social Services (DSS) met its burden
to prove Flores was unable or unwilling to substantially remedy
the conditions which led to the children's foster care placement;
(2) terminating her parental rights to her fourteen-year-old
daughter without the daughter's express consent; (3) terminating
her parental rights without considering the wishes of her
children, who are above the age of reason; and (4) finding that
DSS met its duty to help Flores substantially remedy the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
conditions that led to the children's placement and that Flores'
failure to meet that goal was without good cause. 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. Rule 5A:27.
Sufficiency of the Evidence
Code § 16.1-283 embodies "the statutory
scheme for the . . . termination of residual
parental rights in this Commonwealth." This
"scheme provides detailed procedures designed
to protect the rights of the parents and
their child," balancing their interests while
seeking to preserve the family. However, we
have consistently held that "the child's best
interest is the paramount concern."
Lecky v. Reed, 20 Va. App. 306, 311, 456 S.E.2d 538, 540 (1995)
(citations omitted). Under Code § 16.1-283(C)(2), a party's
parental rights may be terminated if the court finds, based upon
clear and convincing evidence, that termination is in the child's
best interests and that
[t]he parent . . . , without good cause,
[has] been unwilling or unable within a
reasonable period not to exceed twelve months
to remedy substantially the conditions which
led to 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 a parent "failed, without good cause, to communicate
on a continuing or planned basis with the child for a period of
twelve months" or "without good cause . . . [has] been unable to
make reasonable progress towards the elimination of the
2
conditions which led to the child's foster care placement" in
accordance with the foster care plan is prima facie evidence of
the conditions set out in Code § 16.1-283(C)(2). See Code
§ 16.1-283(C)(3).
The trial court found that DSS had presented sufficient
evidence to prove that Flores was "either [] unable or unwilling
to substantially remedy the conditions which led to the
children's placement in foster care." The children were placed
in foster care in September 1991 when Flores left them with their
father, who claimed to be unable to care for them. The children
were demonstrably in need of services when they came into foster
care. DSS was familiar with the family, having provided services
to them since 1989, and DSS received custody pursuant to
emergency removal orders after filing petitions alleging neglect.
At the time of the hearing, the children were doing well in two
foster homes.
Flores was provided with referrals for alcohol abuse
programs and housing assistance. She received transportation
assistance, clothing, and money to help her apply for jobs.
Flores did not maintain a stable address, and she completed
alcohol rehabilitation treatment only after she was incarcerated.
Flores did not maintain consistent contact with the children,
repeatedly missed visits, and was uncooperative with DSS workers.
After Flores relocated to Texas, she attempted on one occasion
only to visit the children.
3
No evidence in the record indicates that Flores had obtained
a stable address or a job or was prepared to provide a home for
the children. Her problem with alcohol abuse continued. DSS
established that it had provided Flores with a variety of
services without success. Therefore, there was clear and
convincing evidence that Flores was unable or unwilling to
substantially remedy the conditions which led to the children's
placement in foster care and that the termination of her parental
rights was in the children's best interests.
Consideration of Children's Wishes
Flores contends the trial court made its decision to
terminate her parental rights without the oldest child's express
consent and without considering the wishes of her other children.
Code § 16.1-283(E) provides that "[n]otwithstanding any other
provisions of this section, residual parental rights shall not be
terminated if it is established that the child, if he is fourteen
years of age or older or otherwise of an age of discretion as
determined by the court, objects to such termination." The
failure of a trial court to receive evidence concerning the
wishes of a child who has reached the age of discretion can be
grounds for reversal. See Hawks v. Dinwiddie Dep't of Soc.
Servs., 24 Va. App. ___, ___, ___ S.E.2d ___, ___ (1997).
In this case, however, the record does not indicate that
Flores preserved for appeal any objection related to the court's
consideration of her children's wishes. We are limited to the
4
record presented to us. The written statement of facts noted
that the guardian ad litem "spoke to all four children and all
but the oldest wanted to continue seeing their mother." Flores
did not specify an objection under Code § 16.1-283(E) on the
order. No such objection was incorporated into the court's
letter opinion or the written statement of facts. Therefore, we
do not address these issues. Rule 5A:18.
DSS Assistance
Flores contends that there was insufficient evidence to
prove that DSS provided her with the necessary assistance to help
her meet the goals set out in the foster care plan. On the
contrary, the evidence indicated that DSS provided numerous
services to Flores. The evidence does not establish that Flores'
lack of success in meeting the goals set in the initial foster
care plans, including obtaining treatment for alcohol abuse and
maintaining consistent contact with the children, was
attributable to a failure on the part of DSS to offer relevant
assistance. As noted by the trial court, "it is not evident that
[Flores] has ever done enough herself for herself to stabilize
her situation for the sake of the children." The evidence
supports the trial court's conclusion.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
5