Laura Kenny v. Richmond Department of Social Servs

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bumgardner
Argued at Richmond, Virginia
LAURA KENNY
MEMORANDUM OPINION * BY
v. Record No. 1483-97-2 JUDGE RUDOLPH BUMGARDNER, III
JUNE 30, 1998
RICHMOND DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Theodore J. Markow, Judge
Richard G. White, Jr., for appellant.
Sandra L. Karison, Assistant City Attorney,
for appellee.
Laura Kenny appeals a decision to terminate her parental
rights. She argues that there was insufficient evidence to
support the decision and that the trial court erred when it did
not ascertain whether her child was of an age of discretion. For
the reasons that follow, we affirm.
When reviewing a decision to terminate parental rights, we
view the evidence in the light most favorable to the prevailing
party below. See Logan v. Fairfax County Dep't of Human Dev., 13
Va. App. 123, 128, 409 S.E.2d 460, 463 (1991). Where, as here,
evidence is heard ore tenus, we will not disturb the trial
court's judgment unless plainly wrong or without evidence to
support it. See id.; Lowe v. Dep't of Pub. Welfare, 231 Va. 277,
282, 343 S.E.2d 70, 73 (1986).
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Laura Kenny's daughter was born May 21, 1986. She was
placed in foster care March 27, 1992 and remained there through
the trial in 1997. While the daughter has been in foster care,
Kenny has not been able to improve her parenting skills. Kenny,
depressed and mildly mentally retarded, was inconsistent in
following through on counseling therapy. Her medical prognosis
for alleviating her problems is low. She has poor insight into
dangers, and she is not able to protect her child. Her history
indicates that she will probably have future crises. Because of
the lack of insight, she does not recognize how to overcome
conflict and does not know the logical consequences of her acts.
She is only able to visit in a supervised setting. She has made
no progress in implementing the parenting skills taught her. Her
daughter is difficult to manage. One witness testified that it
would be best for Kenny and her daughter to continue supervised
relations. The daughter told her foster mother that she wanted
to be adopted.
The trial court heard the testimony of the parties. From
the testimony, the trial court could find by clear and convincing
evidence that it is in the best interest of the child to
terminate Kenny's parental rights and that Kenny is unable within
a reasonable period of time to remedy substantially the
conditions that led to the foster care placement. During the six
years the child has been in foster care, Kenny has not been able
to advance past the stage of being able to visit in a supervised
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capacity. She does not recognize situations that would put the
child in danger, and she is not able to cope with crises when
they arise. The evidence supports the finding that both
requirements of Code § 16.1-283(B) were met.
Kenny argues that the court erred when it failed to
ascertain that the child was of an age of discretion when it
terminated her parental rights. Code § 16.1-283(E) states:
"Notwithstanding any other provisions of this section, residual
parental rights shall not be terminated if it is established that
the child, if he is fourteen years of age or older or otherwise
of an age of discretion as determined by the court, objects to
such termination."
At the time of the hearing the child was eleven. The child
did not testify, and there was no proffer of her testimony. The
mother objected to the statement of the foster parent that the
child preferred to be adopted. The trial judge made no ruling on
the mother's hearsay objection. There was no evidence presented
nor any proffered that suggested the child was of an age of
discretion.
The appellant cites Hawks v. Dinwiddie Dep't of Soc. Servs.,
25 Va. App. 247, 487 S.E.2d 285 (1997), and Deahl v. Winchester
Dep't of Soc. Servs., 224 Va. 664, 299 S.E.2d 863 (1983). Both
of those cases are distinguishable from the case at bar. In
Hawks, the evidence indicated that the child understood the
termination proceedings and its ramifications. Hawks, 25 Va.
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App. at 254, 487 S.E.2d at 288. Here there is no evidence to
that effect. Indeed, the only evidence on the point is argument
from the guardian ad litem that the child probably did not
understand the difference between adoption and permanent foster
care. In Deahl, the child was nearly fourteen and stated he
wanted to return home on a permanent basis. Other evidence
indicated that he said that because he did not want to upset his
parents after a pleasant visit with them. The Supreme Court
stated this evidence indicated the child was a mature thinker.
While the trial court in the present case made no specific
ruling that the child was not of an age of discretion, it did
hear extensive evidence about the child and her relation to her
mother. This evidence provides no suggestion that the child had
reached a level of development that could be called the age of
discretion. Even if there had been evidence suggesting the child
was of the age of discretion, the evidence was that the child
wanted to be adopted and to have her mother's parental rights
terminated. If there was any error, it was harmless.
Accordingly, we affirm the decision to terminate parental rights.
Affirmed.
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