Lisa Allen, f/k/a Lisa A.P. Shaw v. Lynchburg DSS

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
LISA ALLEN, F/K/A
LISA ALLEN PARLETT SHAW
MEMORANDUM OPINION *
v. Record No. 1209-98-3 PER CURIAM
DECEMBER 15, 1998
LYNCHBURG DIVISION OF
SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
(James J. Angel, on brief), for appellant.
Appellant submitting on brief.
(Joyce M. Coleman, Senior Assistant City
Attorney, on brief), for appellee. Appellee
submitting on brief.
Lisa Allen Shaw (mother) appeals the decision of the circuit
court terminating her parental rights to her minor child. The
trial court found that the Lynchburg Division of Social Services
(DSS) presented clear and convincing evidence satisfying the
statutory requirements of Code § 16.1-283 and proving that
termination of mother's parental rights was in the child's best
interests. Mother contends that the trial court erred by finding
that DSS presented sufficient evidence to terminate her parental
rights. We affirm the decision of the circuit court.
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
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"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 Development, 13 Va. App.
123, 128, 409 S.E.2d 460, 463 (1991).
"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." 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."
Id. (citations omitted). "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).
Code § 16.1-283(B) provides that the residual parental
rights of a parent of a child found by the court to be neglected
or abused may be terminated if the court finds that it is in the
child's best interests, that the neglect or abuse presents a
serious and substantial threat to the child's life, health or
development, and that it is not reasonably likely that the
conditions resulting in the neglect or abuse can be substantially
corrected or eliminated to allow the child's safe return within a
reasonable period of time. See Code § 16.1-283(B)(1) and (2).
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Proof that the parent, without good cause, failed to respond to
or follow through with "appropriate, available and reasonable
rehabilitative efforts on the part of social . . . or other
rehabilitative agencies designed to reduce, eliminate or prevent
the neglect or abuse" is prima facie evidence that the underlying
conditions cannot be substantially corrected or eliminated. Code
§ 16.1-283(B)(2)(c).
The record on appeal includes the written statement of facts
and the circuit court file. The trial court found that the child
was abused and neglected. Pursuant to an emergency removal
order, the child was placed in foster care in 1991 when he was
two years old. The child was adjudicated a neglected child
because he was found wandering along a busy street while mother,
under the influence of drugs and alcohol, was unaware that he was
missing. The child also was found to be physically and mentally
abused, as he was bruised and beaten by his stepfather with a
belt, and exposed to domestic violence between mother and the
stepfather.
DSS offered numerous services to mother, including substance
abuse counseling, parenting classes, and transportation
assistance. Mother participated in some services offered through
DSS. While mother tested negative on drug tests for a period of
thirteen months ending in April 1995, she subsequently refused
drug screening. There also was evidence of tampering with two
other drug tests. Mother refused additional services and refused
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to undergo a psychological evaluation. Mother refused to avoid
contact between the stepfather and her child. She indicated that
she did not think the stepfather beat the child too badly, and
did not see the need to keep the child away from the stepfather.
As of the time of the hearing, mother had not maintained a
stable residence or stable employment.
The child suffers from generalized anxiety syndrome and
requires structure and continuity. Despite receiving specific
guidance from his counselor on the child's need for a structured
day, mother was unwilling or unable to make the changes necessary
in her life to accommodate the child's needs. At the hearing,
she indicated that her plans changed often and she could not
guarantee that she could keep a set routine for her son. She did
not believe changing her plans was harmful.
The child's counselor testified that visits or telephone
calls with mother caused the child much anxiety, expressed by his
acting out at home and at school. His counselor indicated that
the child's anxiety decreased when he did not have contact with
his mother. The child has been in the same foster home for over
six years and is attached to the foster parents. His counselor
indicated that removing him from the foster home would be
devastating for him.
Evidence indicated that DSS could not approve mother's
current residence and that mother was not yet in a position to
have the child with her. The child has been in foster care for
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nearly seven years. "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 . . .
responsibilities." Kaywood v. Halifax Co. Dep't of Soc. Servs.,
10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990).
Our review of the record indicates that the trial court did
not err in finding that DSS presented clear and convincing
evidence supporting its petition to terminate mother's parental
rights. Accordingly, the decision of the circuit court is
affirmed.
Affirmed.
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