Tito Lopez Rojas v. Roanoke City Department of Social Services ( 2012 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Huff and Senior Judge Clements
TITO LOPEZ ROJAS
MEMORANDUM OPINION *
v. Record No. 2332-11-3 PER CURIAM
MAY 29, 2012
ROANOKE CITY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Jonathan M. Apgar, Judge
(Thomas E. Wray, on brief), for appellant.
(Timothy R. Spencer, Acting City Attorney; Heather P. Ferguson,
Assistant City Attorney; Joseph F. Vannoy, Guardian ad litem for
the minor children, on brief), for appellee.
Tito Lopez Rojas, appellant, appeals the order of termination of his residual parental rights
to his three children, M.R., T.R., and S.S. Appellant argues the trial court abused its discretion in
finding he failed to demonstrate the ability to remedy the conditions which led to the children’s
continued foster care placement, pursuant to Code § 16.1-283. Upon review of 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 considering termination of parental rights, “the paramount
consideration of a trial court is the child’s best interests.” “Where as
here, the court hears the evidence ore tenus, its finding is entitled to
great weight and will not be disturbed on appeal unless plainly wrong
or without evidence to support it.”
Fauquier Cnty. v. Ridgeway, 59 Va. App. 185, 190, 717 S.E.2d 811, 814 (2011) (citations omitted).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Connie E. Summit is the mother of appellant’s three children. Her parental rights to the
three children had been terminated while appellant was in Mexico, his place of origin, for about a
year. Three months after the mother’s rights were terminated, appellant returned to the United
States and began working with the Department of Social Services with a goal of returning the
children home. The Department offered services and imposed conditions for appellant to meet in an
effort to return the children to him. Appellant had to attend parenting and English as a Second
Language (ESL) classes, cooperate with supervised visitation, obtain independence and separate
housing from Summit, maintain stable employment, and submit to a psychological evaluation.
The Department sought to terminate appellant’s residual parental rights under Code
§ 16.1-283(B) and 16.1-283(C)(2). Code § 16.1-283(B) states, in pertinent part,
The residual parental rights of a parent or parents of a child found by
the court to be neglected or abused and 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:
1. The neglect or abuse suffered by such 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 or parents within a
reasonable period of time.
Code § 16.1-283(C)(2) provides, in pertinent part,
The residual parental rights of a parent or parents 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 . . . [t]he 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 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 or
parents, without good cause, have failed or been unable to make
substantial progress towards elimination of the conditions which led
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to or required continuation of the child’s foster care placement . . .
shall constitute prima facie evidence of this condition.
When appellant returned from Mexico, the children had already been found to be neglected
and abused by their mother and were placed in foster care. Although appellant completed the
parenting course, he was not able to apply what he had learned to his interaction with the children.
The supervised visits were chaotic, and appellant was unable to redirect the children when they
were acting inappropriately. Although appellant would replicate techniques he was shown during
the visits, he would not apply the same skills on following visits. Further, appellant had difficulty
communicating with the children because he speaks very little English and the children speak only
English. Although appellant attended some ESL classes, he did not consistently attend or develop
any proficiency in English. Appellant did not know or understand the special needs of his children,
and even thought his youngest child had a heart problem, when she actually had severe asthma.
Appellant did obtain housing independent from Summit, but continued to rely on her to
communicate with the agencies and she appeared at the termination hearing in support of appellant.
The psychological examination revealed that appellant had little capability of making
concrete plans for the future and that he had developmental delays which were reflected in his
language difficulties, even in his native language. Although the psychologist reported that perhaps
over the long term appellant might be able to improve some of his skills, it would require a great
deal of determination. That determination was not demonstrated in his cooperation with the
agencies working with him, as evidenced by his missed appointments and failure to stay in touch
with the various providers to check on his children. “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
resuming his or [or her] responsibilities.” Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 10
Va. App. 535, 540, 394 S.E.2d 492, 495 (1990).
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Notably, the evidence showed that the children were thriving and their performance in
school, developmentally and socially, was improving while in foster care. The children had formed
a strong bond with their foster parents, who were tending to their emotional and physical needs. All
this evidence supports the trial court’s conclusion that appellant was not able to correct or eliminate
the problems that led to foster care placement and that it was in the children’s best interests to
terminate his residual parental rights.
Accordingly, the trial court did not err by terminating appellant’s residual parental rights to
all three children. For the foregoing reasons, the trial court’s ruling is affirmed.
Affirmed.
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