Beverly Jackson v. Alexandria DSS ( 1995 )


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  •                     COURT OF APPEALS OF VIRGINIA
    Present: Judges Elder, Annunziata and Senior Judge Duff
    Argued at Alexandria, Virginia
    BEVERLY JACKSON
    MEMORANDUM OPINION * BY
    v.         Record No. 2331-94-4     JUDGE ROSEMARIE ANNUNZIATA
    DECEMBER 12, 1995
    ALEXANDRIA DIVISION OF SOCIAL SERVICES
    FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
    Donald H. Kent, Judge
    Clare L. McCulla for appellant.
    Molly S. Dietrich, Assistant Commonwealth's
    Attorney (John E. Kloch, Commonwealth's Attorney,
    on brief), for appellee.
    Dorathea J. Peters (Peters & Mullins, on brief),
    Guardian ad litem for Melody Jackson, an infant.
    The appellant, Beverly Jackson ("mother"), appeals the
    Alexandria Circuit Court's decision to terminate her residual
    parental rights to her daughter, Melody Jackson ("child").     The
    mother alleges that the evidence was insufficient to terminate
    her residual parental rights pursuant to Virginia Code § 16.1-
    283(B).   For the reasons that follow, we reverse.
    The child was born cocaine positive on September 21, 1991,
    and Alexandria Department of Social Services ("DSS") was granted
    legal custody of her soon thereafter.   For most of her life, the
    child remained in foster care while her mother made efforts to
    complete drug treatment programs prescribed by DSS.   By
    mid-September 1993, DSS had concluded the mother's condition had
    *
    Pursuant to Code § 17-116.010 this opinion is not
    designated for publication.
    not sufficiently progressed and sought to change the foster care
    service plan goal to adoption and to terminate mother's parental
    rights.    The family court approved the service plan goal of
    adoption in December 1993 but because of the bond between the
    mother and her child, the parental rights were not terminated at
    that time.    The court continued the matter until June 1994 to
    allow the mother to prove that she had remained substance free
    and had actively participated in treatment. In June 1994 it
    entered a final judgment terminating the mother's residual
    parental rights.    Following a September 26, 1994 hearing, the
    circuit court reached the same result.
    There is no evidence that, after the child's birth, the
    mother physically harmed her in any way.    During the child's time
    in foster care, the mother maintained a strong visitation record,
    and the two carried on a normal mother/daughter relationship.
    Indeed, both the DSS and the family court judge recognized a
    positive bond between the mother and her child.
    The evidence shows that the mother participated in various
    treatment programs, with varying degrees of success, since early
    1992.    She participated in two inpatient programs and maintained
    fairly regular attendance at Narcotics Anonymous meetings
    following her discharge from the second program.    The mother
    received somewhat sporadic help from Substance Abuse Services in
    both Alexandria and Arlington, but her treatment gained
    regularity over time.    By March 1994, the mother was attending
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    weekly treatment sessions with the Alexandria Substance Abuse
    Services.    After moving to Arlington in June 1994 the mother
    contacted Arlington Substance Abuse Services.    From August 1994
    until the hearing in late September, the mother attended weekly
    sessions at Arlington Substance Abuse Services, attended weekly
    group counseling sessions, and went to Narcotics Anonymous
    meetings two times per week.
    Unquestionably, the mother had a drug problem prior to her
    treatment programs.    And, at first, the mother experienced a
    rocky road to recovery, relapsing within two weeks of her
    discharge from the first inpatient program in July 1992 and
    continuing to use drugs until entering the second inpatient
    program in March 1993.    However, there is no evidence that the
    mother had used drugs in the nearly eighteen months since that
    time.    The evidence reflects that, although she was not enrolled
    continually in any one treatment program, beginning March 1993
    until the date her parental rights were terminated, the mother
    underwent numerous drug tests, often random, all of which were
    negative.    At the circuit court hearing, witnesses who had
    observed the mother's previous drug use testified that the mother
    had not used drugs since March 1993.    Betty Richardson-Evans, an
    expert in substance abuse counselling testified that she saw no
    sign of the mother using drugs.
    Moreover, the prognosis for the mother's future treatment
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    was positive at the time of the hearing.   Although, Ms.
    Richardson-Evans testified that people who relapse once are more
    likely to relapse again, she opined that the mother would refrain
    from using drugs this time.   Ms. Richardson-Evans testified that
    the mother was doing all she could to remain drug-free.    The
    mother testified that she would continue treatment regardless of
    the result of the custody issue, and Ms. Richardson-Evans
    testified that she believed the mother would continue drug
    treatment regardless of whether her parental rights were
    terminated.
    The evidence also shows that the mother had trouble
    maintaining either consistent housing or employment during the
    period in question.   The mother's continual moving may have been
    related to family matters over which she had little control.     She
    lived in Fairfax to care for her mother who was dying of cancer.
    The subsequent moves also prevented the mother from maintaining
    a consistent treatment program because the Substance Abuse
    Services are administered by county.
    To terminate residual parental rights under § 16.1-283(B),
    the court must make three findings based upon clear and
    convincing evidence: (1) that termination is in the child's best
    interest; (2) that abuse presented a serious and substantial
    threat to the child's life, health, or development; and (3) that
    it is not reasonably likely that conditions resulting in abuse
    can be corrected to allow the child's safe return within a
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    reasonable time.   E.g. Wright v. Alexandria Div. of Social
    Servs., 
    16 Va. App. 821
    , 826, 
    433 S.E.2d 500
    , 503 (1993), cert.
    denied, 
    115 S. Ct. 651
    (1994); Kaywood v. Halifax Co. Dept. of
    Social Servs., 
    10 Va. App. 535
    , 538, 
    394 S.E.2d 492
    , 494 (1990).
    We agree that the mother's drug use resulted in abuse to the
    child that presented a serious and substantial threat to her.
    However, we disagree that the evidence clearly and convincingly
    showed that terminating the mother's parental rights was in the
    child's best interests.   We also disagree that the evidence
    clearly and convincingly showed that the mother's condition could
    not be corrected to allow the child's safe return within a
    reasonable time from the date of the hearing.
    As the DSS stresses, the government's paramount objective is
    maintaining the best interests of the child.      Logan v. Fairfax
    Co. Dept. of Human Dev., 
    13 Va. App. 123
    , 128, 
    409 S.E.2d 460
    ,
    463 (1991).   As the mother stresses, it is the government's
    objective to preserve, whenever possible, the parent-child
    relationship.   Lowe v. Dept. of Public Welfare, 
    231 Va. 277
    ,
    280-81, 
    343 S.E.2d 70
    , 72 (1986); Weaver v. Roanoke Dept. of
    Human Resources, 
    220 Va. 921
    , 926, 
    265 S.E.2d 692
    , 695 (1980).
    Clearly, the two objectives are not necessarily mutually
    exclusive: the child's best interest may be served by maintaining
    the parent-child relationship.
    The evidence in this case reflects the bond that exists
    between the mother and her child.      Throughout the child's life,
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    the mother visited the child regularly, and, other than the
    mother's drug problems, the two seem to have maintained a normal
    parent-child relationship.    We agree that the instability the
    child has undergone her entire life does not serve her interests
    well.    However, the record does not demonstrate that the child's
    interests would be better served by removing the child from her
    mother.
    Undoubtedly, the mother's drug use was the condition that
    resulted in the abuse of the child.     No evidence suggests that
    the mother abused the child in any other way.
    Proof that the mother had abused drugs and had not responded
    to or followed through with recommended and available treatment
    is prima facie evidence that the mother's condition would not be
    corrected to allow the child's safe return within a reasonable
    time.    Code § 16.1-283(B)(2)(b).   The mother's somewhat
    inconsistent participation in drug treatment programs may
    indicate that her drug abuse would not be corrected within a
    reasonable time.    However, the mother's success in remaining
    drug-free shows that, though her participation may have been
    sporadic, she successfully responded to and followed through with
    treatment.    At the date of the hearing the mother had been
    drug-free for over seventeen months and the prognosis for her
    future condition was positive.    The evidence shows that the
    mother was well on the road to recovery.    It does not clearly and
    convincingly show that, at the date of the hearing, her condition
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    would not be corrected within a reasonable time to allow the
    child's safe return.
    Given the mother's progress in remaining drug-free and her
    positive prognosis for the future, together with the evidence of
    a sound and close relationship between the mother and her child,
    we conclude that the termination of the mother's rights was
    premature and not in the best interests of her child at this
    time.
    Accordingly, the judgment of the trial court is reversed.
    Reversed.
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