Kelly Baker v. Richmond Dept. Social Services ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Kelsey and Senior Judge Hodges
KELLY BAKER
MEMORANDUM OPINION *
v. Record No. 0598-03-2 PER CURIAM
SEPTEMBER 2, 2003
RICHMOND DEPARTMENT OF
SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge
(Richard G. White, Jr., on brief), for
appellant.
(Sarah M. Denham, Assistant City Attorney;
Rene S. Hicks, Guardian ad litem for the
minor child, on brief), for appellee.
Kelly Baker (mother) appeals an order of the trial court
terminating her residual parental rights with respect to her
son, Hakeem Baker. The trial court found by clear and
convincing evidence that termination of mother's rights served
the best interests of her son and that mother had been unwilling
and/or unable to remedy the conditions which required the
intervention of the Richmond Department of Social Services
(RDSS). See Code § 16.1-283(C)(2). In addition, the trial
court approved the goal of adoption proposed by the RDSS foster
care plan. Mother contends the evidence was insufficient to
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
support the decision by the trial court to terminate her
parental rights. Specifically, she claims that (1) RDSS failed
to investigate relatives, beyond Hakeem's maternal grandmother,
as potential foster care alternatives, and (2) that RDSS failed
to make reasonable efforts to provide assistance to mother in
obtaining the services suggested under the foster care plan.
Upon reviewing the record and the 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.
Background
On appeal, we view the evidence and all reasonable
inferences in the light most favorable to RDSS, the prevailing
party below. See McGuire v. McGuire, 10 Va. App. 248, 250, 391
S.E.2d 344, 346 (1990). So viewed, the evidence proved that
mother, homeless and unemployed, gave birth to Hakeem on August
19, 2001. RDSS assumed custody of Hakeem on August 28, 2001 and
initiated the foster care process. The goal of the initial
foster care plan was to place Hakeem with relatives. In pursuit
of that goal, RDSS investigated Hakeem's maternal grandmother,
Brenda Baker, as a possible foster care alternative; she was the
only relative identified to RDSS as a potential candidate.
Additionally, the initial foster care plan required mother to
undergo substance abuse and mental health evaluations at
Richmond Behavioral Health Authority (RBHA) and to enroll in
parenting classes provided by Stop Child Abuse Now (SCAN). RDSS
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informed mother of the need for substance abuse services because
Hakeem's blood tests indicated exposure to cocaine. RDSS
supplied mother with names and telephone numbers to schedule the
necessary services.
Mother never provided RDSS with evidence that she completed
psychiatric services from RBHA or the SCAN parenting classes.
Mother attended the supervised visits with Hakeem but showed
limited parenting skills and, at times, a lack of interest.
By January 28, 2002, RDSS and Bragail Williams, the social
worker assigned to the case, petitioned the Richmond Juvenile
and Domestic Relations District Court (JDR court) for a foster
care review hearing. At that time, RDSS's goal for Hakeem
changed from placement with a relative to adoption. In addition
to mother's failure to complete, or even enroll in, the
necessary services, RDSS concluded that it would be
inappropriate to place Hakeem in the care of his maternal
grandmother. On July 1, 2002, the JDR court approved the goal
of adoption. Mother appealed the decision to the circuit court.
The circuit court heard evidence ore tenus on December 20,
2002, sixteen months after Hakeem's removal into foster care.
Williams, the social worker assigned to the case from August 28,
2001 through January 2002, testified that mother did not provide
her with confirmation that she completed the necessary mental
testing or substance abuse evaluations or the parenting classes.
Williams observed mother fall asleep during the monthly
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visitation sessions with Hakeem and noted that mother remained
homeless or lived in shelters during her monitoring of the case.
Glynis Boyd took over as the social worker assigned to
Hakeem's case on January 25, 2002. Boyd reiterated to mother
that she needed to complete the requirements of the initial
foster care plan. On July 5, 2002, Boyd sent a letter to mother
outlining the plan, including the need for a substance abuse
assessment and mental health evaluation, attendance at parenting
classes, and attainment of appropriate housing and employment.
The letter emphasized RDSS's role as a resource to help mother
comply with the plan.
Christine Brooks, a licensed professional counselor with
the RBHA clinical assessor, conducted the initial substance
abuse and mental health assessment of mother. She diagnosed
mother with mild mental retardation and recommended sessions
with a mental health case manager. Mother admitted to Brooks
that she was told her son tested positive for cocaine exposure
at birth.
Brooks testified that mother attended four sessions with
her mental health counselor but that she missed seven other
meetings over a seven-month period. Mother attended three
psychiatric appointments and missed four. RBHA closed mother's
case for lack of compliance on March 20, 2002. On October 7,
2002, mother called RBHA and scheduled an appointment for
November 4, 2002. Mother missed her rescheduled appointment.
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Mother called again on December 9 and received instructions to
call Brooks' office for an appointment. Mother never called.
Mother testified that she lived in a one-bedroom apartment
with the biological father. She moved into the apartment on May
1, 2002. She occasionally worked part-time jobs through a
temporary placement agency. Her primary source of income is her
social security insurance check. At the time of trial, mother
was pregnant with her second child.
The trial court also heard from Wallace Blackburn, Hakeem's
foster parent. Blackburn testified that Hakeem will require
medical care and hospital visitation for certain developmental
problems and to monitor a mass on his brain. Hakeem has
regularly scheduled doctor visits every three months and must
undergo another MRI when he turns eighteen months. Blackburn
stated that Hakeem appears happy and adjusted in his home. The
Blackburn family has four other children, including another
foster child, age three. He discussed his plans to move his
family into a larger house and his desire to adopt Hakeem.
Analysis
Mother argues that the trial court erroneously terminated
her residual parental rights pursuant to Code § 16.1-283(C)(2)
because RDSS failed to investigate relatives for placement
beyond the maternal grandmother and that it failed to make
reasonable efforts to help mother comply with the foster care
plan. We disagree and conclude that the evidence supports the
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trial court's finding that RDSS presented clear and convincing
evidence satisfying the requirements of Code § 16.1-283(C)(2).
When considering termination of a parent's residual rights
to a child, "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). As
such, the statutory scheme for the termination of residual
parental rights under Code § 16.1-283 "provides detailed
procedures designed to protect the rights of the parents and
their child." Lecky v. Reed, 20 Va. App. 306, 311, 456 S.E.2d
538, 540 (1995).
On review, "[a] trial court is presumed to have thoroughly
weighed all the evidence, considered the statutory requirements,
and made its determination based on the child's best interests."
Farley v. Farley, 9 Va. App. 326, 329, 387 S.E.2d 794, 795
(1990). "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." Logan, 13 Va. App. at
128, 409 S.E.2d at 463.
The pertinent part of Code § 16.1-283(C)(2) provides that
[t]he residual parental rights of a parent
. . . of a child placed in foster care . . .
may be terminated if the court finds, based
upon clear and convincing evidence, that it
is in the best interests of the child and
that . . . the parent or parents, without
good cause, have been unwilling or unable
within a reasonable period of time not to
exceed twelve months from the date the child
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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 and appropriate efforts of . . .
rehabilitative agencies to such end.
Mother claims that RDSS did not make reasonable and
appropriate efforts to assist her in obtaining the services
suggested under the foster care plan. The record discloses that
there were ample and appropriate services offered to mother, but
she was either unwilling or unable to take advantage of them.
"The law does not require the division 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).
RDSS offered mother, and emphasized the importance of,
psychological services and parenting classes. But mother
consistently failed to take advantage of the services. She
missed more counseling sessions than she attended and did not
produce any evidence that she completed a single parenting class
in the sixteen months Hakeem remained in foster care. "It 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 [assuming her] responsibilities." Kaywood v.
Halifax County Dep't of Soc. Servs., 10 Va. App. 535, 540, 394
S.E.2d 492, 495 (1990).
Under Code § 16.1-283(C)(2), failure by the parent,
without good cause, . . . to make reasonable
progress towards the elimination of the
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conditions which led to the child's foster
care placement in accordance with [the]
obligations . . . set forth in a foster care
plan . . . shall constitute prima facie
evidence of the conditions
requisite to termination. Mother failed to show good cause as
to why she did not comply with the plan offered by RDSS.
Mother argues on appeal that her intellectual limitations
required RDSS to do more than simply refer her for services.
However, mother did not offer the trial court any evidence that
intellectual limitations, if any, precluded her from remedying
the conditions which led to Hakeem's placement in foster care.
Therefore, her argument is without merit.
As an alternative, mother argues that RDSS failed to
investigate potential placement with relatives beyond Hakeem's
maternal grandmother. Code § 16.1-283(A) requires the trial
court to "give consideration to granting custody to relatives of
the child, including grandparents" before terminating parental
rights. In Logan, we held that the Department "has a duty to
produce sufficient evidence so that the court may properly
determine whether there are relatives willing and suitable to
take custody of the child, and to consider such relatives in
comparison to other placement options." Logan, 13 Va. App. at
131, 409 S.E.2d at 465. "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.
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Servs., 18 Va. App. 769, 771, 446 S.E.2d 640, 641 (1994).
However, this duty does not require the department to
"investigate the home of every relative of the child, however
remote . . . ." Id. at 771, 446 S.E.2d at 642.
As part of the initial foster care plan, RDSS investigated
the maternal grandmother as a placement alternative and
determined it would not be appropriate to place Hakeem in her
care. Boyd, the RDSS social worker assigned to the case,
testified that mother did not identify any other relative as a
possible foster parent. At trial, mother stated that at one
time her aunt expressed a willingness to take Hakeem. However,
mother could only identify the aunt by her first name and could
not provide her address or telephone number.
RDSS presented the trial court with sufficient evidence
that no reasonable placement alternative exists. RDSS
investigated the maternal grandmother and ruled her out as a
possible caregiver for Hakeem. Following that determination and
mother's failure to comply with the terms of the foster care
plan, RDSS changed its goal for Hakeem to adoption. Based upon
the evidence before it, the trial court determined that Hakeem's
best interests would be served through adoption. We cannot say
that the decision of the trial court is plainly wrong or without
support in the record.
The evidence presented by RDSS supports the finding that
termination of mother's residual parental rights served the
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child's best interests. Mother's inability to remedy the
conditions that led to Hakeem's placement in foster care was
without good cause. Accordingly, we summarily affirm the
decision of the trial court. See Rule 5A:27.
Affirmed.
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