Rebecca Braddock v. Fairfax Co. Dpt. of Family Svcs ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
REBECCA BRADDOCK
MEMORANDUM OPINION *
v. Record No. 2293-96-4 PER CURIAM
NOVEMBER 18, 1997
FAIRFAX COUNTY DEPARTMENT
OF FAMILY SERVICES
FROM THE CIRCUIT COURT OF
FAIRFAX COUNTY
Leslie M. Alden, Judge
(Herman M. Sawyer, Jr., on brief), for
appellant.
(David P. Bobzien, County Attorney; Dennis R.
Bates, Senior Assistant County Attorney;
Louise M. DiMatteo, Assistant County
Attorney, on brief), for appellee.
(Marlene M. Hahn; Sandra L. Havrilak; Hicks &
Havrilack, on brief), Guardian ad litem of
the subject child, an infant.
Rebecca Braddock appeals the decision of the circuit court
terminating her residual parental rights to her youngest child.
Braddock contends that the trial court erred by (1) finding that
the Fairfax County Department of Family Services (Department)
presented clear and convincing evidence meeting the statutory
requirement for terminating her parental rights; and (2) denying
Braddock's request for a continuance. Upon reviewing the record
and briefs of the parties, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the decision of
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the trial court. See Rule 5A:27.
"[T]he termination of residual parental rights is a grave,
drastic and irreversible action." Helen W. v. Fairfax County
Dep't of Human Dev., 12 Va. App. 877, 883, 407 S.E.2d 25, 28-29
(1991). "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," and 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). 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." Id. We view the evidence in the light
most favorable to the Department as the party prevailing below
and its evidence is afforded all reasonable inferences fairly
deducible therefrom.
I.
The Department became involved with Braddock and her family
in 1985 when the Department found that Braddock provided
inadequate supervision of the two older children. Subsequently,
the Department addressed issues of the home's physical condition
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and the children's care and supervision. In April 1993, the
Department removed the youngest child, then three years old, from
the home because the home was dirty to the point of being unsafe
and because the Department continued to be concerned with
Braddock's supervision of the children. The child was returned
to Braddock's physical custody two months later, but removed
again in March 1994. In September 1994, the parties stipulated
that the child was neglected.
In June 1995, the Department filed its petition seeking to
terminate Braddock's parental rights to her youngest child. In
June 1996, the juvenile and domestic relations district court
denied the petition, and ordered that the child be returned to
Braddock upon completion of certain specified steps. However,
the district court suspended its order upon evidence that the
child's teenaged brother was charged with criminal sexual abuse
of the child. The brother subsequently entered an Alford plea to
the criminal charges of aggravated sexual battery and assault.
The Department noticed its appeal of the district court's denial
of its petition to the Circuit Court of Fairfax County on July 3,
1996.
The Department sought to terminate Braddock's parental
rights pursuant to Code § 16.1-283(B)(1) and (2). The statute
required that the Department prove, by clear and convincing
evidence that termination was in the child's best interests and
that
(1) The neglect or abuse suffered by such
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child presented a serious and substantial
threat to his life, health or development;
and
(2) It is not reasonably likely that the
conditions which resulted in such neglect or
abuse can be substantially corrected or
eliminated so as to allow the child's safe
return to his parent . . . within a
reasonable period of time.
Id. The circuit court found that the Department established by
clear and convincing evidence that it was in the best interests
of the child to terminate Braddock's parental rights.
The evidence presented by the Department established that
the child was originally removed from the home due to unhealthy
living conditions and inadequate supervision. Braddock took
steps to improve the physical conditions in the home and the
Department noted that Braddock had substantially satisfied that
requirement.
However, during the course of the Department's involvement
with the family, it became clear that Braddock's teenaged son had
sexually abused the child. The son's psychological profile,
based on testing done in 1994, noted that he was "at risk for
sexually inappropriate behavior, particularly with younger
children." Questions concerning possible sexual abuse of the
child were raised at least as early as 1994, when the child
refused to draw her brother as part of the family, then drew him
on a separate sheet of paper, without clothes, and remarked that
she had seen him without clothes. Subsequently, the child
reported numerous instances of this abuse, which were
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corroborated by a physical examination. Braddock was present
during the June 1996 juvenile court hearing when the police
detective investigating the child abuse allegations testified
that the son admitted inserting his fingers into the child's
vagina on several occasions.
Braddock testified before the circuit court that she
believed the foster mother prompted the child to allege sexual
abuse to keep from losing the child. As recently as two weeks
before the trial, Braddock opined that the outstanding issue was
a messy house. Dr. M. Kathryne Jacobs, a clinical psychologist
specializing in young children and families, observed Braddock's
interaction with the child at that time. Dr. Jacobs testified
that Braddock's reaction to the child's disclosure illustrated
that Braddock had a character disorder that left her unable to
handle the information concerning her son's abuse of her
daughter. Because Braddock was emotionally unable to process
such stressful information, she was unable to take the steps
necessary to adequately protect the child. Dr. Jacobs noted that
Braddock demonstrated little emotion in connection with her own
childhood sexual abuse by a family member.
Contrary to Braddock's argument on appeal, her son's abusive
behavior was not imputed to her. Rather, it was Braddock's
demonstrated inability or reluctance to accept her own role in
improving the family's condition and in protecting her youngest
child from future abuse which caused the trial court to terminate
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her parental rights. Dr. Jacobs opined that Braddock could not
cope with the difficulties of the situation. Despite being
cautioned by the Department regarding the possibility of sexual
abuse by her son, Braddock did not prevent him from babysitting
young children in her neighborhood.
Braddock either refused or was unable to address the
significant issues of her inadequate supervision and the
psychological and emotional needs of her family resulting from
the sexual abuse of her youngest child. Despite counseling and
substantial services provided by the Department with the goal of
addressing these specific issues, these underlying circumstances
were not substantially corrected or eliminated so as to allow the
child's safe return.
Dr. Marie Majarov, the child's counselor, testified that the
child was dealing with issues related to the sexual abuse. The
child expressed anger, a lack of self-esteem, and a sense of
being damaged. Dr. Majarov indicated that the child did not feel
trusted and safe with Braddock because Braddock failed to believe
the child's report of abuse. Continued contact with Braddock
caused the child emotional stress as the child dealt with issues
of loyalty. The child repeatedly indicated that she felt safe in
her current foster home and expressed the desire to stay there
until she grew up.
The trial court found that the Department proved by clear
and convincing evidence that the child's best interests would be
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served by terminating Braddock's parental rights. This finding
was not plainly wrong or without evidence to support it.
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II.
"The decision whether to grant a continuance is a matter
within the sound discretion of the trial court. Abuse of
discretion and prejudice to the complaining party are essential
to reversal." Venable v. Venable, 2 Va. App. 178, 181, 342
S.E.2d 646, 648 (1986). The Department appealed the juvenile and
domestic relations district court order returning the child to
Braddock on July 3, 1996. Braddock sought to continue the trial
"until the criminal proceedings against [her son] are concluded."
Her son was found guilty of aggravated sexual abuse and assault
on August 23, 1996. On August 30, 1996, the trial court denied
Braddock's motion on the ground that "§ 16.1-296 of the Virginia
Code requires a merits hearing on the termination petition must
be heard within 90 days of perfecting the appeal."
While Braddock contended that the trial court abused its
discretion by denying her motion to continue the trial, she
failed to allege how the continuance prejudiced her. On these
facts, we find no error in the trial court's denial of Braddock's
motion to continue.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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