TAMMY FITZGERALD V MONTGOMERY COUNTY DEPARTMENT ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Overton
TAMMY FITZGERALD
MEMORANDUM OPINION *
v. Record No. 0475-02-3 PER CURIAM
JULY 30, 2002
MONTGOMERY COUNTY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Ray W. Grubbs, Judge
(Joseph Graham Painter, Jr.; Scott Weber;
Painter Weber, on briefs), for appellant.
(Gerard R. Marks, on brief), for appellee.
(Helen J. Spence, on brief), Guardian ad
litem for the minor child.
Tammy Fitzgerald (mother) appeals the decision of the circuit
court terminating her residual parental rights in her daughter,
Melisa. On appeal, mother contends that the trial court erred by
(1) finding she had been unwilling or unable, without good cause,
to meet the conditions required by the foster care plan and (2)
finding the change in foster care plan was in Melisa's best
interest. Mother asks that the judgment of the trial court be
reversed. 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. See Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Background
On appeal, we view the evidence and all the reasonable
inferences in the light most favorable to appellee as the party
prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,
391 S.E.2d 344, 346 (1990).
Melisa was born on November 5, 1998, and taken into custody
by the Montgomery County Department of Social Services (the
Department) on May 9, 1999. The juvenile and domestic relations
district court (juvenile court) made a finding of neglect on July
23, 1999 and on February 17, 2000, the court entered a planning
order changing the foster care goal to adoption. Mother appealed
the order to the circuit court, which reversed the juvenile court
and ordered that the foster care goal be amended to "return home."
The Department provided additional services to the parents,
and Melisa visited with the parents five days a week. On March
13, 2001, at a foster care review hearing, the Department reported
mother continued to have difficulties with employment and housing,
and had not completed services. The court admonished the parents
and warned that the goal would be changed to adoption if the
situation did not improve.
To correct a physical problem, Melisa was under the care of
an orthopedist and required special tape on her feet. During a
visit with mother, mother left the tape on Melisa's feet longer
than it should have been, causing Melisa pain and the loss of skin
when the tape was removed. The injuries interfered with future
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physical therapy. Following this incident the Department changed
the foster care goal to adoption. The court then terminated
mother's parental rights.
Analysis
I.
In order to terminate mother's residual parental rights under
Code § 16.1-283(C)(2), the court was required to find, upon
clear and convincing evidence, that termination is in the best
interest 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
the child's foster care placement,
notwithstanding the reasonable and appropriate
efforts of social, medical, mental health or
other rehabilitative agencies to such end.
The Department provided mother with supervised and unsupervised
visitation, in-home services, a parenting skills training
program, individual counseling, psychological assessments, and
couples counseling. Mother failed to maintain stable employment
and housing, refused to comply with substance abuse screenings,
and failed to complete training classes and counseling. Mother
married a man not Melisa's father and separated from him shortly
thereafter. Additionally, mother failed to properly care for
Melisa's medical needs. We hold, therefore, that the record
amply supports the trial judge's ruling that the Department
established by clear and convincing evidence under Code
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§ 16.1-283(C)(2) that mother, without good cause, failed to
remedy the conditions leading to the child's foster care
placement.
II.
"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 Devel., 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 [them].'" Id. (citation omitted).
As explained above, mother failed to remedy the conditions
leading to Melisa's foster care placement and endangered her
child. The trial court did not abuse its discretion in
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determining the change in foster care plan was in Melisa's best
interests.
Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
Affirmed.
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