Raymond Rivenbark v. Fairfax Dept of Human Devel. ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, Bray and Senior Judge Hodges
RAYMOND RIVENBARK
v. Record No. 1771-94-4
FAIRFAX COUNTY DEPARTMENT OF HUMAN DEVELOPMENT
DIANA RIVENBARK MEMORANDUM OPINION *
PER CURIAM
v. Record No. 0016-95-4 MAY 23, 1995
FAIRFAX COUNTY DEPARTMENT OF HUMAN DEVELOPMENT
FROM THE CIRCUIT COURT OF
FAIRFAX COUNTY
Gerald Bruce Lee, Judge
(Gabriel J. Zepecki; Wilson & Zepecki, on brief), for
appellant Raymond Rivenbark.
(James D. Young, on brief), for appellant Diana
Rivenbark.
(David P. Bobzien, County Attorney; Robert Lyndon
Howell, Deputy County Attorney; Linda M. Dwyer,
Assistant County Attorney, on brief), for appellee.
Raymond Rivenbark (father) and Diana Rivenbark (mother)
appeal the decision of the circuit court terminating their
residual parental rights to their daughter, Martha. In their
joint brief, the parents raise the following issues on appeal:
(1) whether the trial court erred in finding that the Fairfax
County Department of Human Development (Department) had made
reasonable and appropriate efforts to aid the parents in
substantially remedying the conditions that led to Martha's
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
foster care placement; (2) whether clear and convincing evidence
supported the trial court's finding that the Department had
provided father with appropriate and adequate services to promote
the parent-child relationship; and (3) whether the trial court
erred in determining that Martha's best interests were served by
remaining in foster care. 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.
"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). A trial court's judgment of a
child's best interests, "'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).
The trial court found by clear and convincing evidence that
termination of mother's and father's parental rights was in
Martha's best interests. The trial court also determined that
the Department had satisfied the requirements of Code
§ 16.1-283(B) and (C)(2).
I. Reasonable and Appropriate Efforts
Mother and father challenge the trial court's finding that
reasonable and appropriate efforts were offered unsuccessfully to
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the parents by the Department and other services to remedy
substantially the causes of Martha's neglect or abuse. The
parents contend that many services to which the Department points
were provided after an earlier removal of the children in 1986,
and that the Department made insufficient efforts to remedy the
causes of Martha's neglect or abuse.
Martha was placed into foster care pursuant to a consent
decree following an incident in 1992 in which mother repeatedly
kicked Martha and pulled her hair when Martha refused to leave a
fair. At that time, mother and father admitted that they could
not guarantee Martha would not be harmed again.
The record demonstrates that Martha is a special needs child
who is moderately mentally retarded and who has difficulty
communicating. When Martha was placed into foster care, Martha
was unruly, uncontrollable, and barely able to perform basic
self-care tasks. After intensive efforts by the foster care
parents with supporting personnel, Martha made substantial
progress.
Testimony by the Department's witnesses demonstrated that
mother's capabilities are limited, that she is unable to deal
with abstract thinking and is easily frustrated. Mother's scores
on psychological testing performed after the 1992 abuse incident
were consistent with those associated with abusive parents.
Repeatedly, the witnesses testified that while mother came to
parenting classes and genuinely loved her daughter, mother was
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unable to incorporate information she received in the classes
into her parenting behavior.
The mental health professionals recommended in-home
assistance as the only method which might improve mother's
parenting skills. Mother, however, refused to participate with
in-home assistance until Martha was returned home, although the
Department stressed that the training would also be helpful with
the daughter who remained in the home. Thus, the only method
which offered some possibility of improving mother's parenting
skills was rejected by mother.
In contrast, while father did not have the types of
limitations faced by mother, the trial court noted that father
had not "made efforts or been available to support [mother] where
she is deficient to assure that the children's needs for safety
are met . . . ." Father left child care to his wife and gave no
indication he was willing to take on additional responsibilities
for Martha so that she could return home. Father met with the
Department social worker only five or six times in a period of
over two years after Martha's removal, and was uncertain whether
he could protect Martha if mother became abusive.
The trial court found that the parents were provided with
"home-based services, psychological evaluations, transportation
to visit Martha, access to additional medical care and special
education, and other services" in the two years after Martha's
removal. The parents elected not to take advantage of most of
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the services offered. "The law does not require the [Department]
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).
Therefore, we cannot say the trial court erred in finding
that the Department provided mother and father with reasonable
and appropriate assistance designed to eliminate the causes of
Martha's foster care placement.
II. Services Provided to Father
Father asserts that the trial court failed to require clear
and convincing proof that the Department provided him with
appropriate and adequate services to preserve his relationship
with Martha. As noted above, however, the evidence demonstrated
that father had not taken advantage of the services offered to
the family. In fact, father submitted to a psychological
evaluation only after the Department had sought a Rule to Show
Cause. While father did not have the same limitations faced by
mother, father expressed no desire to assume additional
responsibilities in the family to compensate for the skills his
wife lacked.
The trial court ruled that the Department had presented
evidence of father's unwillingness to substantially remedy the
conditions leading to Martha's foster care, thereby satisfying
the requirements of Code § 16.1-283(C)(2). On review, we cannot
say the trial court's determination was plainly wrong or without
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evidence to support it.
III. Martha's Best Interests
Mother and father argue that the evidence does not establish
that termination of their parental rights is in Martha's best
interests. The parents assert that the court failed to consider
their family photographs as evidence of the bonds of their
nuclear family and of Martha's condition prior to placement in
foster care. The parents also contend that foster care placement
is not in Martha's best interests in light of the fact that her
current foster family is not interested in adopting her and the
probability that Martha will need life-long assistance.
"'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.'" Logan, 13 Va. App. at
128, 409 S.E.2d at 463 (citation omitted). The record
illustrates that Martha's serious behavioral and hygiene problems
went unimproved while Martha was in her parents' care, despite
the efforts by school personnel and the Department to assist the
family. The trial court determined that Martha made substantial
progress while in foster care. The testimony given in the trial
court demonstrates that that finding is supported by clear and
convincing evidence.
Moreover, due to mother's own limitations and father's
failure to take a more active role in the family, there remains a
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substantial risk to Martha's safety if she were returned home.
Despite their love for Martha, the evidence demonstrates that the
parents have been unable to substantially remedy the conditions
which led to Martha's neglect and abuse.
Therefore, the trial court's determination that Martha's
best interests were served by terminating mother's and father's
parental rights is supported by the evidence and is not plainly
wrong.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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