Joy May v. Virginia Beach Dept. of Social Services ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Overton
JOY MAY
MEMORANDUM OPINION *
v. Record No. 0461-00-1 PER CURIAM
DECEMBER 28, 2000
VIRGINIA BEACH DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
H. Thomas Padrick, Jr., Judge
(Harry Dennis Harmon, Jr., on brief), for
appellant.
(Leslie L. Lilley, City Attorney; Karla C.
Haynes, Assistant City Attorney, on brief),
for appellee.
Joy May ("May") appeals from the decision of the circuit
court terminating her residual parental rights to her son, Jaimie
May ("Jaimie"). On appeal, May contends that the trial court
erred in denying (1) her initial motion for a continuance, (2) her
motion to strike for failure to prove by clear and convincing
evidence that the Virginia Beach Department of Social Services
("DSS") took all reasonable and appropriate efforts to remedy the
situation leading to Jaimie's foster care, and (3) her motion to
continue the case for further services. Upon reviewing the record
and briefs of the parties, we conclude that this appeal is without
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
merit. Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
On appeal, we view the evidence and all 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).
Procedural Background
In February, 1998, DSS removed Jaimie from May's home based
on allegations of abuse. The Virginia Beach Juvenile and Domestic
Relations District Court terminated May's parental rights at a
hearing in July, 1999. May appealed the district court's decision
to the Circuit Court of the City of Virginia Beach. At a trial in
June, 2000, that court entered an order terminating May's parental
rights. May appeals from that order.
Analysis
I.
May contends that the circuit court erred in denying her
motion to continue the case. She asserts that she was unable to
contact her attorney because she was homeless for several months
and then incarcerated for the several weeks immediately prior to
the circuit court trial. Because she was unable to contact her
attorney, she was unable to properly prepare for the trial.
However, at trial, May stated that she lived in the same apartment
from June 1999 through December 1999 and then moved to a new
apartment for one month prior to being incarcerated. Her attorney
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made numerous attempts to track her down, all to no avail. He
located her in the local jail just before trial. The trial court
found that May had ample opportunity to contact her attorney
during the months preceding the trial and that she could have
taken greater steps to prepare for it. May provided no
explanation for why she did not maintain contact with her
attorney. "The decision whether to grant a continuance is a
matter within the sound discretion of the trial court. Abuse of
discretion and prejudice to the complaining party are essential
to reversal." Venable v. Venable, 2 Va. App. 178, 181, 342
S.E.2d 646, 648 (1986). We find no abuse of discretion in the
trial court's determination.
II. - III.
May contends that the trial court erred in denying her
motion to strike because DSS failed to prove by clear and
convincing evidence that it had taken all reasonable and
appropriate efforts to remedy the situation that led to Jaimie's
foster care. May also asserts that the trial court erred by
denying her motion for a continuance in order to allow for
further services.
May's parental rights were terminated pursuant to Code
§ 16.1-283(C), which provides in pertinent part:
The residual parental rights of a parent or
parents of a child placed in foster care as
a result of court commitment, an entrustment
agreement entered into by the parent or
parents or other voluntary relinquishment by
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the parent or parents 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:
* * * * * * *
2. The 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 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. The court
shall take into consideration the prior
efforts of such agencies to rehabilitate the
parent or parents prior to the placement of
the child in foster care.
DSS provided reasonable and appropriate social, medical,
mental health and other rehabilitative services to May. Ruthann
Beil, a DSS employee, testified that DSS provided May access to
free parenting classes, arranged for supervised visitation with
her son, provided counseling if requested, and offered to
provide transportation to the visits and therapy sessions. May
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visited her son only twice between April, 1998 and July, 1999.
The record discloses that there were ample services offered and
available to May, but she chose not to take advantage of them.
"The law does not require the division 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).
The trial court did not err in denying May's motion to strike.
The trial court determined that DSS provided reasonable and
appropriate rehabilitative services but that May had been
unwilling or unable to substantially remedy the situation
leading to her son's foster care. Because DSS had already made
available to May a reasonable amount of services, we find no
abuse of discretion in the trial court's denial of May's motion
to continue the case for further services.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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