Lester Ray Terry v. Roanoke City DSS ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
LESTER RAY TERRY
MEMORANDUM OPINION *
v. Record No. 3091-99-3 PER CURIAM
JUNE 6, 2000
ROANOKE CITY DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Robert P. Doherty, Jr., Judge
(Joseph F. Vannoy, on brief), for appellant.
Appellant submitting on brief.
(William M. Hackworth, City Attorney;
Allen T. Wilson, Assistant City Attorney, on
brief), for appellee. Appellee submitting on
brief.
Lester Ray Terry (Terry) appeals the decision of the circuit
court terminating his parental rights to five of his biological
children. 1 The circuit court found that the Roanoke City
Department of Social Services (DSS) proved by clear and convincing
evidence that Terry, without good cause, had been unwilling or
unable within a reasonable period of time to remedy substantially
the conditions which led to the children's placement in foster
care, despite the reasonable and appropriate efforts made by DSS
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1
The termination petitions were for Anthony Jermaine Pond,
Marcus Ray Pond, Kimberly Marie Pond, Montel Jerome Pond, and
Janice Leslie Pond.
to reunite the children with Terry. On appeal, Terry contends
that the trial court erred in finding that DSS presented clear and
convincing evidence sufficient to satisfy the requirements of Code
§ 16.1-283. Upon reviewing the record and briefs of the parties,
we conclude that this appeal is without merit. Accordingly, we
affirm the decision of the trial court.
"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). "Code § 16.1-283 embodies 'the
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." Lecky v. Reed, 20 Va. App. 306, 311, 456 S.E.2d 538, 540
(1995) (citations omitted). "'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 trial judge's findings, "'when based on
evidence heard ore tenus, will not be disturbed on appeal unless
plainly wrong or without evidence to support it.'" Id. (citation
omitted).
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The evidence proved that at the time the four older children
were placed in foster care in January 1998, Terry was in jail.
The youngest child was placed in foster care at her birth in July
1998 when the mother tested positive for cocaine. In June 1998,
DSS provided a foster care plan to Terry, indicating what steps he
needed to accomplish before the children could be safely placed in
his care. Those steps included obtaining and maintaining steady
employment and housing, avoiding drugs and alcohol, scheduling a
substance abuse assessment and following any recommendations
arising therefrom, completing a parenting class, and visiting
regularly with his children. By the review in October 1998, Terry
had obtained employment, but had taken no other steps required
under the foster care plan. DSS conducted another review in
January 1999, and found that Terry had maintained employment but
had not performed any of the other actions required under the
foster care plan. Terry was incarcerated three different times
between January 1998 and November 1999.
The trial court found that DSS presented clear and convincing
evidence sufficient to satisfy the requirements of Code
§ 16.1-283(C). That section provides, in pertinent part, that
the court may terminate the residual parental rights of a parent
of a child placed in foster care if the court finds by clear and
convincing evidence that it is in the best interests of the
child and that:
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2. The parent . . ., without good cause,
[has] been unwilling or unable within a
reasonable period of time not to exceed
twelve months from the date the child 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
social, medical, mental health or other
rehabilitative agencies to such end. Proof
that the parent . . ., without good cause,
[has] failed or been unable to make
substantial progress towards elimination of
the conditions which led to or required
continuation of the child's foster care
placement in accordance with their
obligations under and within the time limits
or goals set forth in a foster care plan
filed with the court or any other plan
jointly designed and agreed to by the parent
or parents and a public or private social,
medical, mental health or other
rehabilitative agency shall constitute prima
facie evidence of this condition.
Code § 16.1-283(C).
Terry was incarcerated at the time the children were
initially placed in foster care from their mother's custody.
DSS communicated to Terry the steps he was required to take in
order for his children to be returned to his care. Terry
obtained and maintained employment for approximately six months
before he returned to jail. He also visited every other week
with his children, missing only five visits over a period of
approximately fourteen months. However, Terry did not complete
any of the other obligations under the foster care plan. At the
time of the hearing, Terry did not have stable housing or
employment, although he testified that he had a meeting
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scheduled with his former employer and anticipated being
rehired. He never completed substance abuse screening or
parenting classes. He testified that he did not think he had to
do anything but get a job, although he admitted that he signed
the foster care plans setting out the requirements.
Evidence also established that the children were special
needs children. The eldest had a physical handicap of his arm
and required physical and occupational therapy several times a
week. All four older children had severe speech deficits and
displayed some form of developmental delays. The youngest
child, who was taken into foster care at birth, did not show
signs of significant developmental delays.
Terry indicated at trial that he would refrain from
criminal activity in the future and that he would complete the
required steps set out in the foster care plan. However, "'past
actions and relationships over a meaningful period serve as good
indicators of what the future may be expected to hold.'"
Linkous v. Kingery, 10 Va. App. 45, 56, 390 S.E.2d 188, 194
(1990) (quoting Frye v. Spotte, 4 Va. App. 530, 536, 359 S.E.2d
315, 319 (1987)). Although DSS informed Terry of his
obligations under the foster care plan, Terry failed to complete
the majority of his obligations, despite DSS's offers to assist
him and despite the passage of over a year. Under the
circumstances of this case, the trial court was not required to
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allow Terry additional time within which to commence his
obligations.
It is irrelevant to the trial court's determination under
Code § 16.1-283(C)(2) that there was no evidence that Terry
abused the children prior to their placement in foster care.
The statute focuses on remedying the underlying conditions and
required evidence that Terry made progress towards correcting
the conditions that led to the children's foster care placement.
The record contains sufficient evidence to support the
finding of the trial court that DSS presented prima facie
evidence meeting the requirements of Code § 16.1-283(C)(2). DSS
proved by clear and convincing evidence that termination of
Terry's parental rights was in the best interests of the
children and that Terry failed, without good cause, to make
substantial progress towards the elimination of the conditions
which led to the children's foster care placement in accordance
with his obligations under and within the time limits set out in
the foster care plan.
Accordingly, the decision of the circuit court is affirmed.
Affirmed.
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