Tammy Lynn Cook v. Roanoke City DSS

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Clements and Agee
Argued at Salem, Virginia
TAMMY LYNN COOK
MEMORANDUM OPINION * BY
v. Record No. 2930-00-3 JUDGE G. STEVEN AGEE
JULY 3, 2001
ROANOKE CITY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Jonathan M. Apgar, Judge
(Onzlee Ware; Onzlee Ware & Associates, on
brief), for appellant. Appellant submitting
on brief.
Carolyn H. Furrow, Assistant City Attorney
(William M. Hackworth, City Attorney, on
brief), for appellee.
Tammy Lynn Cook (mother) appeals from a decision
terminating her residual parental rights to her two children on
petition by the Roanoke City Department of Social Services (DSS)
in the City of Roanoke Circuit Court. She contends (1) the
trial court terminated her rights pursuant to Code § 16.1-283(B)
without a finding that either of her children were abused or
neglected and (2) the evidence was insufficient to sustain a
finding that her rights should be terminated. We disagree and
affirm the trial court's decision.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, only those facts necessary to a disposition of this
appeal are recited.
"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 Dev., 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." Farley v. Farley, 9 Va. App. 326, 328,
387 S.E.2d 794, 795 (1990). On appeal, we presume that the
trial court "thoroughly weighed all the evidence, considered the
statutory requirements, and made its determination based on the
child's best interests." Id. at 329, 387 S.E.2d at 796.
Furthermore, "[w]here, as here, the trial court heard the
evidence ore tenus, its finding is entitled to great weight and
will not be disturbed on appeal unless plainly wrong or without
evidence to support it." Martin v. Pittsylvania County Dep't of
Social Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986).
Code § 16.1-283 establishes the procedures and grounds by
which a trial court may order the termination of residual
parental rights. Pursuant to Code § 16.1-283(B), the trial
court may terminate the residual parental rights of a parent of
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a child who has been found by the trial court to be neglected or
abused and placed in foster care based upon clear and convincing
evidence that it is in the child's best interest and that
1. The neglect or abuse suffered by such
child presented a serious and substantial
threat to his life, health or development;
and
2. It is not reasonably likely that the
conditions which resulted in such neglect or
abuse can be substantially corrected or
eliminated so as to allow the child's safe
return to his parent or parents within a
reasonable period of time . . . .
Code § 16.1-283(B). 1 Moreover, it is prima facie evidence of the
conditions set out in Code § 16.1-283(B)(2) if there is proof
that:
a. The parent or parents are suffering from
a mental or emotional illness or mental
deficiency of such severity that there is no
reasonable expectation that such parent will
be able to undertake responsibility for the
care needed by the child in accordance with
his age and stage of development; . . . or
* * * * * * *
c. The parent or parents, without good
cause, have not responded to or followed
through with appropriate, available and
reasonable rehabilitative efforts on the
part of social, medical, mental health or
other rehabilitative agencies designed to
1
DSS also requested the termination of mother's parental
rights pursuant to Code § 16.1-283(C). However, before the
trial court, DSS conceded it could not prevail under this
subsection, and the trial court did not base its ruling on this
subsection. We, therefore, do not address it.
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reduce, eliminate or prevent the neglect or
abuse of the child.
Code § 16.1-283(B)(2)(a) and (c) (emphasis added).
On appeal, we view the evidence in the light most favorable
to DSS, the prevailing party below, and grant to that evidence
all reasonable inferences fairly deducible therefrom. Logan, 13
Va. App. at 128, 409 S.E.2d at 463. So viewed, the evidence
established that DSS received a referral for prevention services
upon the birth of mother's daughter in February 1996. DSS
became concerned for the child when it learned of mother's
history of mental health problems, her limited intellectual
function, her failure to consistently take her medication and
meet with her counselor at Blue Ridge Community Services. The
initial goal of DSS, under these circumstances, was to educate
mother and prevent abuse and neglect of the infant. This goal
was not met.
Mother was initially cooperative, but failed to follow
through with some counseling sessions, failed to take her
medication and became uncooperative. Mother was unable to
follow instructions given one-on-one to her on how to care for
the child and the home. For instance, the family lived in a
house with a broken window that allowed mosquitoes in to bite
the infant. DSS provided mother with medicine to treat the
infant's bites and medicine to keep the mosquitoes off the
infant. Mother used the treatment medicine as the preventive
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medicine. She also failed to take the infant to the Children's
Health Investment Partnership for health monitoring as
recommended by DSS. In addition, despite repeated one-on-one
instruction, even the most basic instructions such as how to mix
infant formula, had to be repeated constantly. Other
instructions such as prohibiting the family dog from defecating
and urinating in the house were ignored.
In September 1996, DSS discovered the child had a recent
cigarette burn above her right eye. Mother denied being aware
of the injury and then provided four different explanations for
how the burn happened. The child was removed from the home for
approximately five months, returned to the family for a week, on
the condition that mother not be left alone with the child, but
then was voluntarily placed with DSS by her father.
In April 1997, mother's son was born. A preliminary
protective order was entered for this child providing that
mother was to abstain from any offensive conduct against the
child, to cooperate with reasonable services offered to protect
the child's life and health, to allow DSS to enter the home, and
to refrain from acts of commission or omission which would tend
to endanger the child's life, health or normal development. DSS
reinitiated in-home services, but the son was removed from the
home upon his father's incarceration.
Mother was permitted visitation with her children while
they were in foster care; however, problems arose during this
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time. Mother took the children outside without coats and
without permission in the winter; she carried sharp objects
around the children; and she would be unable to assist the
infants in cleaning themselves without becoming frustrated and
crying. In addition, mother continued to disregard her doctor's
instructions, failed to take her medication, ceased attending
her counseling sessions and performed poorly in DSS recommended
parenting classes.
Mother's first assignment of error is that the trial court
made no finding that either child had been neglected or abused
as the first sentence of Code § 16.1-283(B) requires. Mother
cites two pages in the filed appendix where this assignment of
error was preserved in the trial court for appeal. However, our
review of the record finds no such argument being made or
otherwise brought before the trial judge. This argument is now
being raised for the first time on appeal. We will not consider
an issue so raised and find it barred under Rule 5A:18.
Moreover, the trial court's orders specifically recite
prior court commitments finding abuse or neglect for each child.
A court speaks through its orders, and we presume that these
orders accurately reflect what transpired. Waterfront Marine
Constr., Inc. v. North End 49ers, 251 Va. 417, 427 n.2, 468
S.E.2d 894, 900 n.2 (1996); Stamper v. Commonwealth, 220 Va.
260, 280-81, 257 S.E.2d 808, 822 (1979), cert. denied, 445 U.S.
972 (1980). The burden is on the party alleging an irregularity
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in a court proceeding to show affirmatively from the record that
the irregularity exists. See Hagood v. Commonwealth, 157 Va.
918, 929, 162 S.E. 10, 13 (1932). Mother has not met this
burden.
As to the sufficiency of the evidence issue, the trial
court found by clear and convincing evidence that termination
was in the children's best interests and that the neglect
suffered by the children
presented a serious and substantial threat
to their life, health or development . . . .
It is not reasonably likely that the
conditions which resulted in such neglect or
abuse can be substantially corrected or
eliminated so as to allow [the children's]
safe return to [mother] within a reasonable
period of time . . . . [Mother] is suffering
from a mental or emotional illness or mental
deficiency of such severity that there is no
reasonable expectation that she will be able
to undertake responsibility for the care
needed by [the children] in accordance with
their ages and stages of development.
We find that the evidence in this case supports the trial
court's findings. It is apparent from the record that mother is
unable to care for the young children as they were subjected to
unhealthy living arrangements, her daughter was not taken for
appropriate health care, and mother was unable to learn to care
for them despite repeated efforts to assist them. This neglect
presented a serious threat to the children's health and
development as contemplated by Code § 16.1-283(B)(1).
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Further, mother was unable or unwilling to remedy within a
reasonable time the conditions that led to the children's
placement in foster care, notwithstanding DSS's efforts to that
end. DSS demonstrated mother's continuous uncooperative and
reckless actions in handling her own mental health problems
since 1996 when her daughter was born. Mother did not rebut
this evidence. "Thus, there is prima facie evidence that it is
not reasonably likely that [mother's] conditions can be
substantially corrected or eliminated within a reasonable time."
Lowe v. Dept. of Public Welfare of the City of Richmond, 231 Va.
277, 282, 343 S.E.2d 70, 73 (1986). See also Code
§ 16.1-283(B)(2)(a). In addition, DSS demonstrated that mother,
despite assistance, refused to follow through with the
appropriate efforts and services designed to reduce, eliminate
or prevent the neglect to her children. Mother also failed to
rebut this evidence. This showing by DSS is also prima facie
evidence that mother is not reasonably likely to remedy the
neglectful conditions within a reasonable period of time. See
Code § 16.1-283(B)(2)(c).
Mother's daughter, now age five, has been continuously in
foster care since February 1997. Her son, now four, has been in
foster care since shortly after his birth in April 1997. These
years of foster care have been more than enough time for mother
to remedy the neglectful conditions to which she exposed her
children while in her care. Yet, mother has failed to do so and
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after all these years, it is evident from the record that mother
is unable to remedy the conditions "within a reasonable time."
The phrase, "within a reasonable time" is an
important element of the statutory scheme.
One of the goals of the Commonwealth . . .
is to maintain the family structure in all
possible circumstances. The Code
recognizes, however, that there are
circumstances in which this will not be
possible. 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 his [or her] responsibilities.
Kaywood v. Halifax Co. Dept. of Social Services, 10 Va. App.
535, 540, 394 S.E.2d 492, 495 (1990).
While the phrase "within a reasonable time" is not defined
by the statute, "its meaning depends upon the context and the
attendant circumstances." Id. Upon a review of the record, the
trial court was justified in finding that the children were not
likely to be returned to mother within a reasonable period of
time, if ever. It is clearly not in the children's best
interests for mother to maintain her residual parental rights as
her children would continue in foster care after all these years
with no evidence that mother will ever rectify the conditions
that posed harm to them.
Accordingly, we cannot say that the trial court's finding,
by clear and convincing evidence, that the conditions of
subsection (B) of Code § 16.1-283 have been established was
plainly wrong or without evidence to support it. We, therefore,
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affirm the trial court's decision to terminate mother's residual
parental rights.
Affirmed.
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