William Rothgeb, Sr. v. Harrisonburg Rockingham Department of Social Services

COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Petty and Senior Judge Bumgardner
WILLIAM ROTHGEB, SR.
MEMORANDUM OPINION*
v. Record No. 1396-06-3 PER CURIAM
DECEMBER 28, 2006
HARRISONBURG ROCKINGHAM
DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
John J. McGrath, Judge
(Warren A. Picciolo, on brief), for appellant. Appellant submitting
on brief.
(Kim Van Horn Gutterman, Assistant County Attorney; Roland M.
L. Santos, Guardian ad litem for the infant children, on brief), for
appellee. Appellee and Guardian ad litem submitting on brief.
William Rothgeb, Sr.1 appeals a decision of the circuit court terminating his parental rights
to his three children, W., B., and E. Rothgeb contends the circuit court erred as a matter of law by
(i) ordering termination of his parental rights because the Harrisonburg Rockingham Department
of Social Services (“DSS”) failed to provide him with rehabilitative services, and (ii) approving a
foster care plan authorizing the adoption of the children. Finding no error in the circuit court’s
rulings, we affirm.
I.
We view the evidence in the “‘light most favorable’ to the prevailing party in the circuit
court and grant to that party the benefit of ‘all reasonable inferences fairly deducible therefrom.’”
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
We identify appellant by “William Rothgeb, Sr.” in conformity with the circuit court
clerk’s style of the case. Other documents in the record, however, identify appellant as “Jr.”
rather than “Sr.” and use the middle initial “F.” or middle name “Franklin.”
Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 262, 616 S.E.2d 765, 767 (2005)
(quoting Logan v. Fairfax County Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460,
463 (1991)).
Rothgeb has three children by his marriage to Jennifer Rothgeb. At the time of the circuit
court hearing, W. was twelve years old, B. was nine, and E. was seven. All three children had
been in foster care for 38 of the preceding 58 months.
One of Rothgeb’s neighbors testified that Rothgeb “quite often” drank alcohol “to
excess.” On at least five occasions within the two-and-a-half years the Rothgebs lived there, the
neighbor saw Rothgeb so inebriated he was “passed out in the yard.” There was “arguing
constantly” going on at the Rothgeb house, said the neighbor, and one time he felt the whole
“house shaking” while Rothgeb apparently battered his half of the duplex by “swinging a
sledgehammer.”
The neighbor also said the violence inside Rothgeb’s house was so routine that the “cops
was there at least five, six times” for disturbances. On one of those occasions, police responded
to a domestic situation in which Rothgeb’s wife said an intoxicated Rothgeb “grabbed her around
the neck and began choking and hitting her” and “started throwing things around the kitchen
including the kitchen table and chair.” The fight moved to the yard where Rothgeb continued
choking her. The altercation finally ended when she struck him in the face three times. Covered
in blood from Rothgeb’s bleeding nose, Rothgeb’s wife told police the children were present in
the home to witness the brawl. Rothgeb was arrested for public intoxication. “I’ve seen broken
noses, bloody noses” after fights between Rothgeb and his wife, one neighbor testified. Rothgeb
and his wife “fought a lot more after the kids came back” from stays in foster care.
Rothgeb also directed violence towards his children. On one occasion, a neighbor
witnessed the “hundred and ninety pound” Rothgeb “flying in behind” B. at a dead “sprint”
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shoving B. in the back so “extremely hard” that his “head kind of flinged back.” Rothgeb then
“jerked [B.’s] pants down and whipped his ass” with his hand as the neighbor (and the
neighbor’s young daughter) looked on. On another occasion, Rothgeb was observed paddling B.
with a “piece of wood or a two by four.”
Another violent incident led to the children’s final removal from Rothgeb’s home. An
apparently intoxicated Rothgeb chased his wife off their porch, beat on the car windshield in an
attempt to stop her from leaving, and had his legs run over when she “gunned” the car to leave
the driveway. This, too, occurred while the children watched.
While in foster care, the children confided in their counselors and foster parents about the
physical abuse they witnessed and suffered at Rothgeb’s hands. W. told his counselor he was
“afraid” of Rothgeb because of Rothgeb’s “physical abuse” of his “mother and all the kids.” W.
told of being “‘slammed’ onto a sofa” by Rothgeb and, after a weekend visitation in the Rothgeb
home on January 25-26, 2003, told his foster mother that “his head hurt” because Rothgeb “had
pulled his hair.” W. is now diagnosed with pervasive developmental disorder, cognitive
disorder, and depressive disorder, and although twelve years old, functions at “maybe a
preschool or kindergarten level” academically. W. also suffers from speech impairments,
enuresis, and encopresis.
In counseling, B. described “a lot of fights” between his mother and Rothgeb that were
frequently caused by Rothgeb after drinking alcohol. Rothgeb would hit him with a belt until he
cried, he said, and if he didn’t cry, Rothgeb would continue hitting him with a thicker belt until
he did cry. B., who “saw himself as the protector” of his siblings and mother against Rothgeb’s
violence, is now diagnosed with major depression, suffers from enuresis and encopresis, and
struggles with anger and aggression. B. blames his anger “on witnessing domestic violence in
his home.”
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E. told her counselor that she saw Rothgeb “hitting [her mother] on her legs with his
hands and with sticks” and that she once saw her mother “on the ground rolling around” after
Rothgeb “had done something” to physically hurt her. Rothgeb also hit her brothers with sticks
and belts, she said, and Rothgeb once hit her with a sledgehammer. All this “violence that she
experienced and witnessed,” said the counselor, made E. “afraid” of Rothgeb and caused her to
suffer from post-traumatic stress disorder and disruptive disorder.
Rothgeb’s alcohol abuse also resulted in an assault and battery arrest and four DUI
convictions. One DUI arrest occurred while Rothgeb was driving with then four-year-old B. in
the car. But despite his fourteen-year record of alcohol abuse and domestic violence, Rothgeb’s
documented participation in substance abuse treatment programs was limited to one brief group
program at White Post Detention Center, a less-than-one-day session at Harrisonburg Diversion
Center, a program through the local Community Services Board, and short-lived participation in
Alcoholics Anonymous. After each program or release from jail, Rothgeb “relapsed” into
further alcohol abuse and was never “consistent with alcohol treatment.” Rothgeb’s only excuse
for failing to obtain treatment was “his [periodic] obligations to the National Guard.”
A psychological evaluation of Rothgeb in 2003 corroborated the neighbors’ and
children’s accounts of Rothgeb’s alcohol-fueled violence. Rothgeb’s test scores, reported the
psychologist, indicated a “high probability of a substance abuse disorder,” suggested Rothgeb
could “‘explode’ with little provocation,” and warned that if Rothgeb “continue[d] to use
alcohol, his dependence will worsen.”
Rothgeb’s alcohol abuse also led to the children’s neglect. Rothgeb lost custody of E. in
2001 due to lack of supervision when she, just three years old, was found wandering the streets
in a feces and urine-soaked diaper. In January 2003, when the children were at the Rothgeb
residence for a weekend visitation, E. drank kerosene from an unprotected container. Rothgeb
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dismissed the incident as not being “anything much” to worry about, but he also warned W. not
to tell anyone about the incident.
A social worker visited Rothgeb in 2002 to advise him that the children’s trial placement
in the Rothgeb home had failed due to inadequate supervision of the children and found Rothgeb
reeking with the “odor of alcohol,” a cold beer sitting on his truck’s bumper, and the truck’s bed
“full of [beer] cans.” “Risk for continued neglect is clear and extremely high,” said the
psychologist who examined Rothgeb in 2003, because “Rothgeb will comply with [DSS]
directives only under close supervision and will revert to his preferred patterns as soon as
scrutiny is over.” “Rothgeb is ill equipped to deal with his children’s special needs. Indeed, he
would have considerable difficulty trying to parent children who are problem-free,” concluded
the psychologist.
After having the children in foster care three times, DSS finally reached the point where
“we just felt we really needed permanency for these children, that [Rothgeb and his wife] had
chances in the past and things had not been remedied.” As a result, DSS changed its foster care
plan goal from return home to adoption and began termination proceedings.
Upon hearing all the evidence, the circuit court found that the “level of the violence that
these children are exposed to[,] which I have no doubt whatsoever originates in alcohol[,] is
catastrophic.” The court also concluded that Rothgeb doesn’t “come anywhere near” the level of
parental capacity needed to deal effectively with the children’s “extremely demanding needs.”
These findings, coupled with the fact that the children had been doing “quite well” in foster care
for “over sixty-five percent of the last five years,” persuaded the circuit court by clear and
convincing evidence that the petition for termination as recommended by the children’s guardian
ad litem should be granted. The circuit court entered orders terminating Rothgeb’s residual
parental rights under Code § 16.1-283(B) and 16.1-283(C)(2).
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II.
A. REHABILITATIVE SERVICES UNDER CODE § 16.1-283(B) & (C)(2)
Rothgeb argues that the circuit court erred in terminating his residual parental rights
under Code § 16.1-283(B) because any prima facie case for termination under subsection (B)
was overcome by DSS’s failure to provide rehabilitative services, and DSS failed to carry its
burden of proving the factors listed in Code § 16.1-283(C)(2). Rothgeb argues separately that
the circuit court erred in terminating his residual parental rights under Code § 16.1-283(C)(2)
since DSS failed to provide rehabilitative services.
Rothgeb’s argument fails on several levels. To begin with, Rothgeb does not take into
account that subsections (B) and (C) provide “‘individual bases upon which a petitioner may
seek to terminate residual parental rights.’” Toms, 46 Va. App. at 269, 616 S.E.2d at 771
(quoting City of Newport News Dep’t of Soc. Servs. v. Winslow, 40 Va. App. 556, 563, 580
S.E.2d 463, 466 (2003)). Satisfactory proof under either subsection, standing alone, sustains a
termination decision. See Toms, 46 Va. App. at 269, 616 S.E.2d at 771; Winslow, 40 Va. App.
at 563, 580 S.E.2d at 466.
“Nothing in Code § 16.1-283 or the larger statutory scheme,” moreover, requires that
rehabilitative services “be provided in all cases as a prerequisite to termination under subsection
B.” Toms, 46 Va. App. at 268, 616 S.E.2d at 771. Subsection (B)(2) “does not create specific
time frames” within which rehabilitative services must be provided to a parent, “nor does it
mandate that a public or private agency provide any services to a parent after the child enters
foster care.” Id. at 269, 616 S.E.2d at 771 (internal quotation marks and citation omitted).
Thus, the only issue we must decide is whether sufficient facts support the circuit court’s
decision to terminate Rothgeb’s parental rights under subsection (B). In answering that question,
we presume the circuit court “thoroughly weighed all the evidence, considered the statutory
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requirements, and made its determination based on the child’s best interests.” Fields v.
Dinwiddie County Dep’t of Soc. Servs., 46 Va. App. 1, 7, 614 S.E.2d 656, 659 (2005) (quoting
Farley v. Farley, 9 Va. App. 326, 329, 387 S.E.2d 794, 796 (1990)). “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.’” Toms, 46 Va. App. at 266, 616 S.E.2d at 769 (quoting
Logan, 13 Va. App. at 128, 409 S.E.2d at 463 (citation omitted)).
The facts of this case support the circuit court’s decision to terminate Rothgeb’s parental
rights under Code § 16.1-283(B). Rothgeb’s destructive pattern of alcohol abuse and domestic
violence, added to his inability to meet the basic needs of his children, provided the circuit court
with clear and convincing evidence that the “neglect or abuse” suffered by Rothgeb’s children
“presented a serious and substantial threat” to their life, health or development and made it “not
reasonably likely” that the conditions which resulted in such neglect or abuse could be
substantially corrected or eliminated so as to allow the children’s safe return to Rothgeb within
“a reasonable period of time.” Code § 16.1-283(B). Given the evidence before it, the circuit
court reasonably concluded that the best interests of the children would be served by the entry of
the parental termination orders.
B. FOSTER CARE PLAN APPROVING GOAL OF ADOPTION
Rothgeb also challenges the circuit court’s orders approving DSS’s foster care plan goal
of adoption. Having found the court’s termination orders supported by clear and convincing
evidence, our analysis necessarily subsumes Rothgeb’s challenge to the court’s approval of
DSS’s adoption goal because “a preponderance-of-the-evidence standard governs judicial
modifications of foster care plans.” Toms, 46 Va. App. at 265 n.3, 616 S.E.2d at 769 n.3 (citing
Richmond Dep’t of Soc. Servs. v. Carter, 28 Va. App. 494, 497, 507 S.E.2d 87, 88 (1998)).
Thus, this issue need not be addressed further.
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III.
Because sufficient evidence supports the circuit court’s factfinding and no error of law
undermines its judgment, we affirm the circuit court’s orders terminating Rothgeb’s parental
rights under Code § 16.1-283(B).
Affirmed.
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