Kamal Datt v. Alexandria Division of Social Svcs. ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Bumgardner
KAMAL DATT
MEMORANDUM OPINION *
v. Record No. 2276-97-4 PER CURIAM
APRIL 21, 1998
ALEXANDRIA DIVISION
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald M. Haddock, Judge
(Gwena Kay Tibbits, on briefs), for
appellant.
(Molly A. Smith, Assistant Commonwealth's
Attorney, on brief), for appellee.
Kamal Datt (mother) appeals the decision of the circuit
court terminating her residual parental rights. Mother contends
that the trial court erred by (1) finding that she, without good
cause, was unwilling or unable within a reasonable time to remedy
substantially the conditions which resulted in her children's
foster care placement; (2) finding that she was suffering from an
emotional illness and mental deficiency of such severity that
there is no reasonable expectation that she will be able to
undertake responsibility for the care of the children; (3)
finding that termination of her residual parental rights was in
the best interests of the children; and (4) not attempting to
place the children with a relative. Upon reviewing the record
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
and briefs of the parties, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the decision of
the trial court. See Rule 5A:27.
"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."
Logan v. Fairfax County Dep't of Human Dev., 13 Va. App. 123,
128, 409 S.E.2d 460, 463 (1991) (citations omitted).
The Alexandria Division of Social Services (DSS) was
required to present clear and convincing evidence sufficient to
satisfy the requirements of Code § 16.1-283.
Code § 16.1-283 embodies "[t]he 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. However, we
have consistently held that "[t]he 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).
Substantially Remedying Underlying Conditions
Code § 16.1-283(C) provides, in pertinent part, that the
court may terminate residual parental rights to a child placed in
foster care as a result of court commitment, an entrustment
agreement or other voluntary relinquishment, "if the court finds,
based upon clear and convincing evidence, that it is in the best
2
interests of the child" and that the 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," despite "reasonable
and appropriate efforts" from "social, medical, mental health or
other rehabilitative agencies to such end." Code
§ 16.1-283(C)(2). Evidence that the parent failed, without good
cause, "to make reasonable progress towards the elimination of
the conditions which led to the child's foster care placement in
accordance with . . . a [jointly designed and agreed upon] foster
care plan" is prima facie evidence that the parent was unwilling
or unable to substantially remedy the underlying conditions.
Code § 16.1-283(C)(3)(b).
DSS presented evidence concerning mother's problems with
housing, employment, and parenting issues which caused the
neglect and abuse suffered by the children, and husband's ongoing
alcohol addiction. The evidence, including mother's testimony,
indicated that mother failed to recognize, acknowledge, or accept
any responsibility for her children's neglect, or see any need
for improving her parenting or relational skills. Moreover,
although mother testified that she addressed the problem of
father's alcoholism by separating from him, the evidence
indicated that she continued to have an ongoing relationship with
him. Evidence of mother's psychological profile indicated that
mother was resistant to criticism and had difficulty
3
incorporating suggested changes in behavior.
The record contains credible evidence to support the trial
court's findings. Therefore, we find no error.
Emotional Illness
Mother contends that the trial court erred in finding that
clear and convincing evidence proved that she suffered from "an
emotional illness and a mental deficiency of such severity that
there is no reasonable expectation that she will be able to
undertake responsibility for the care needed by the children in
accordance with their ages and stages of development."
Dr. Gloria Morote, a clinical psychologist with the
Multicultural Clinical Center, interviewed and tested mother in
March 1997. Dr. Morote testified that, based upon her interview
and testing of mother, she concluded that mother did not lack
intellectual ability, but that mother lacked the emotional
ability to parent effectively. Dr. Morote stated that mother was
rigid, inflexible, socially immature, lacked self-awareness, and
had poor interpersonal skills. Mother was unable to benefit from
feedback because she denied that her answers were wrong and
refused to incorporate suggestions to improve her performance on
tests. In addition, mother denied any history of spousal abuse,
denied that father had serious trouble with alcohol, and denied
neglecting or abusing her children.
The trial court also saw and heard the mother testify.
Thus, the court was able to determine what weight to afford her
4
testimony in light of the other evidence presented. In her
testimony, mother minimized the problems faced by the family and
her responsibility for the children's placement in foster care.
The record supports the trial court's finding that DSS
established by clear and convincing evidence that mother suffered
from an emotional illness and a mental deficiency and that there
was no reasonable expectation that she would be able to be
responsible for the care needed by her children.
Best Interests of the Children
The evidence established that the children faced neglect and
abuse while in the custody of their parents. DSS repeatedly
identified hygiene, housing, supervision, parenting issues,
school attendance, and domestic violence as problems within the
family. The oldest child, who has cerebral palsy, regularly came
to school with unclean clothing and underwear, an unwashed face,
and unbrushed teeth and hair. He was unable to feed himself with
a fork, and he indicated that he felt like a dog when his parents
expected him to eat his food face down from his plate. When
questioned about this practice, mother's answers were evasive.
The boy's wheelchair was encrusted with dead roaches. Mother
rejected the use of an appliance which would have allowed the son
to toilet himself because it would require her to empty the
toilet.
The younger children had better hygiene, but their
attendance at school was poor, and they dressed in clothing that
5
was inappropriate for the weather. A DSS social worker testified
that the parents continued to have problems with housing and
domestic violence.
While in foster care, the children have thrived, physically
and emotionally. Although they expressed desires to see their
parents, the children consistently expressed concerns about being
returned to mother's custody without their father being present.
Visitations with mother were often marked by her indifference to
the children, including one incident when mother had to be
instructed to aid the youngest child, who was vomiting into a
waste basket.
Credible evidence supports the trial court's finding that
DSS proved by clear and convincing evidence that it was in the
children's best interests to terminate mother's parental rights.
Placement with Relatives
Mother contends that the trial court erred by not attempting
to place the children with her sisters. "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. Servs., 18 Va. App. 769, 771, 446 S.E.2d 640, 641
(1994); see also Code § 16.1-283(A).
The evidence indicated that DSS explored placement with the
family even before the children were placed in foster care. The
family did not respond or attempt to visit the children until
6
near the time of trial and did not cooperate in completing
paperwork or by contacting DSS. Mother's younger sister, Shaleen
Mishra, testified that she was interested in adopting all three
children. However, Mishra admitted she was in the process of
divorcing her third husband, that she had not seen the children
in over three years, and that she had testified at the district
court that she would adopt the two younger children only.
Mother's older sister, Purnima Sidig, did not testify. However,
there was evidence that Sidig was instructed to bring her husband
to a meeting with DSS to discuss the possibility of adoption, but
failed to do so. Sidig did not contact DSS further.
Based upon the evidence, including Mishra's testimony, the
trial court did not believe that the sisters presented a serious
alternative. The trial court determined that placement with the
relatives would amount to returning the children to their
parents' custody. We cannot say that the trial court erred in
finding that placement of the children with the relatives was not
in the children's best interests.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
7