Benjamin Abbitt v. Lynchburg Division of Social Services ( 2006 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Senior Judge Fitzpatrick
BENJAMIN ABBITT
MEMORANDUM OPINION*
v. Record No. 1202-06-3 PER CURIAM
OCTOBER 31, 2006
LYNCHBURG DIVISION OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
(Mark B. Arthur; Fralin, Feinman, Coates & Kinnier, P.C., on brief),
for appellant. Appellant submitting on brief.
(Joyce M. Coleman, Senior Assistant City Attorney; Wanda P.
Yoder, Guardian ad litem for the infant child, on brief), for
appellee. Appellee submitting on brief.
Benjamin Abbitt appeals from the trial court’s decision terminating his residual parental
rights to his minor child, M.P., pursuant to Code § 16.1-283(B). Abbitt contends he substantially
complied with the requests from Lynchburg Division of Social Services (DSS) and DSS failed to
provide adequate services to meet his needs. We disagree and affirm.
BACKGROUND
We view the evidence in the light most favorable to the prevailing party below and grant
to it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax County Dep’t of
Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991). So viewed, the evidence
proved that Tony Snow, Housing Inspector for the City of Lynchburg, first came in contact with
Abbitt in November 2003 when he lived at a certain residence with M.P. and M.P.’s mother
(mother). Approximately four months later, Snow saw Abbitt, M.P., and mother at a second
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
residence. Snow found garbage next to baseboard heaters that created a fire danger. Snow gave the
family an opportunity to remedy the unsafe conditions, but when he returned for a second visit on
March 31, 2004, the conditions were worse. Snow gave the family a second opportunity to remedy
the unsafe conditions and returned for a visit on April 4, 2004, but he condemned the house as unfit
because the conditions had not been corrected and the house’s conditions were too dangerous for
human habitation. Photographs of Abbitt’s residences were admitted into evidence.
Sally Barca, a social worker with Child Protective Services, responded to a complaint on
April 1, 2004. Barca testified there were tight pathways in the house, areas were blocked with piles
of items, there was rotting food in the kitchen, and trash was everywhere. Barca testified mother’s
parental rights to seven other children had been terminated and there was one founded complaint
against Abbitt when he assaulted mother while she was holding M.P. DSS took custody of
three-year-old M.P. on April 1, 2004.
Abbitt is deaf and DSS scheduled a psychological evaluation with an interpreter, but he
failed to keep the appointment. DSS scheduled a second appointment with an interpreter, and
Dr. James Anderson administered a test designed for deaf individuals. Dr. Anderson found that
Abbitt scored in the low average range for intelligence and showed deficits in judgment and
emotional control. Dr. Anderson testified Abbitt showed limited understanding of child
development and parenting and Abbitt would have difficulty safeguarding a child. Dr. Anderson
testified Abbitt showed a lack of empathy and he doubted whether this lack of empathy could be
remedied. Dr. Anderson concluded that Abbitt showed signs of significant personality dysfunction
in the form of dependent, narcissistic, and schizoid personality traits, and scored in the high risk
range on a measure of child abuse. In Dr. Anderson’s opinion, Abbitt’s progress in a classroom
setting would be limited.
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Mary Rice, a counselor, worked with Abbitt to improve his parenting skills. They met twice
a month for ninety minutes with an interpreter between November 2004 and February 2005. Rice
testified Abbitt struggled with basic safety concepts and made minimal progress. Nine sessions
were scheduled, but Abbitt failed to meet with Rice and the interpreter for three of the sessions.
Due to mother’s history of abuse and neglect, Rice worked with Abbitt to establish a separate
residence from her. Rice testified Abbitt believed mother was a good parent and he looked to her
for help. Rice testified Abbitt became frustrated because DSS did not believe mother was a good
parent. Rice also worked with Abbitt on housekeeping and hygiene. Rice and Abbitt discussed the
conditions of the residence that led to the removal of M.P. Rice testified Abbitt did not accept
responsibility for the conditions of the residence and blamed the situation on DSS for appearing at
the residence unannounced.
Lisa Bailey, a social worker with DSS, believed the best chance of returning M.P. to the
home was to focus on Abbitt since mother’s parental rights to seven children had previously been
terminated. Bailey testified Abbitt completed parenting classes with an interpreter, but Abbitt
believed the classes were too advanced for him. Bailey testified Abbitt attended weekly visitation
with M.P., but sometimes Abbitt failed to interact with M.P. and read a newspaper instead. Bailey
testified there was an occasion when Abbitt arrived with body odor and M.P. stated, “Benji, you
stink.” Bailey testified on another visitation, Abbitt had a cold and M.P. gave Abbitt a tissue and
told him to wipe his nose.
Bailey attempted to visit the residence where Abbitt and mother were living, but she was
allowed inside on only one occasion. Bailey took photographs of the outside of the residence,
which were admitted into evidence. A photograph showed an accumulation of shopping carts and
other items outside the residence. Bailey testified she discussed with Abbitt the need to separate
from mother, but he refused to separate from her. Bailey testified an interpreter was present for
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Abbitt’s scheduled appointments, but he frequently failed to keep the appointments and would later
show up without an appointment, demanding to see her. In April 2005, two months after the
termination petition was filed and one year after M.P. had come into DSS’s care, Abbitt left a note
with DSS saying he had left mother; however, this move resulted in Abbitt being homeless. In a
June 21, 2005 note left at DSS, Abbitt stated he planned to rent a two-bedroom apartment on July 1,
2005. Abbitt failed to rent the apartment. Bailey testified she stopped services to Abbitt in
February 2005 after receiving a psychological evaluation that gave no meaningful hope Abbitt
could safely parent a child.
Bailey testified M.P. had rotted teeth, high levels of lead in his blood, and was not
up-to-date on his immunizations when he came into the custody of DSS. At the time of the
termination hearing, M.P. had restorative surgery for his teeth, his blood level for lead was normal,
and his immunizations were current. M.P. had been in a foster home, and the family wanted to
adopt him.
Abbitt testified he found a place to live three days before the November 4, 2005 termination
hearing, which was twenty months after DSS took custody of M.P. Abbitt admitted he learned of
mother’s history of child neglect in July 2004, but did not then separate from her for nearly a year.
After mother entered into a romantic relationship with another man, Abbitt continued to live with
them and slept on the floor while they slept in the bed.
ANALYSIS
Abbitt argues the evidence failed to prove he did not respond or follow through with the
recommended treatment to improve his capacity for adequate parental functioning and DSS
failed to offer services to meet his physical disabilities or intellectual shortfalls.
Code § 16.1-283(B)(2) requires proof, by clear and convincing evidence, that:
It is not reasonably likely that the conditions which resulted in
such neglect or abuse can be substantially corrected or eliminated
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so as to allow the child’s safe return to his parent or parents within
a reasonable period of time. In making this determination, the
court shall take into consideration the efforts made to rehabilitate
the parent or parents by any public or private social, medical,
mental health or other rehabilitative agencies prior to the child’s
initial placement in foster care.
“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, 13
Va. App. at 128, 409 S.E.2d at 463 (quoting Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d
232, 237 (1988)).
In this case, DSS presented clear and convincing evidence that Abbitt could not correct
the conditions that resulted in the abuse and neglect of M.P. within a reasonable period of time
and that DSS provided adequate services based upon Abbitt’s needs. M.P. came into the custody
of DSS in April 2004 due to severe and continuing unsanitary living conditions and evidence of
violence between Abbitt and mother. M.P.’s teeth were rotted, he had high blood levels of lead, and
he had not been adequately immunized. Rice and Bailey counseled Abbitt that he must not live
with mother due to her history of child abuse and neglect. Abbitt refused for more than one year to
establish housing separate from mother. For a period of time, Abbitt was homeless; he rented an
apartment just days prior to the termination hearing, which was twenty months after DSS took
custody of M.P. Abbitt’s behavior demonstrated a lack of commitment when he missed scheduled
appointments with Bailey, Rice, and Dr. Anderson where an interpreter was present. Rice met with
Abbitt with an interpreter and worked with him to improve his parenting skills, but Abbitt struggled
with basic safety concepts and made minimal progress. During visits with M.P., Abbitt would
sometimes not interact with him, but he would read a newspaper, and three-year-old M.P. helped
Abbitt with basic hygiene. Although Abbitt completed a parenting class, he believed the class was
too advanced for him. Based upon a psychological evaluation, Dr. Anderson believed that Abbitt
would have difficulty safeguarding a child, that Abbitt showed a lack of empathy, that Abbitt
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showed signs of significant personality dysfunction in the form of dependent, narcissistic, and
schizoid personality traits, and that Abbitt scored in the high risk range on a measure of child abuse.
Abbitt’s actions with mother were consistent with Dr. Anderson’s diagnosis of dependency. “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 her] responsibilities.” Kaywood v.
Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990).
Accordingly, we affirm the trial court’s termination of Abbitt’s parental rights to M.P.
pursuant to Code § 16.1-283(B).
Affirmed.
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