Jennifer Rothgeb v. Harrisonburg Rockingham Department of Social Services

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Senior Judge Fitzpatrick
JENNIFER ROTHGEB
MEMORANDUM OPINION*
v. Record No. 1399-06-3 PER CURIAM
JANUARY 23, 2007
HARRISONBURG ROCKINGHAM
DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
John J. McGrath, Jr., Judge
(Danita S. Alt, on brief), for appellant.
(Kim Van Horn Gutterman, Assistant County Attorney; Roland M.
L. Santos, Guardian ad litem for the infant children, on brief), for
appellee.
On May 26, 2006, the trial court entered orders terminating the parental rights of Jennifer
Rothgeb to her three children, W., B., and E., pursuant to Code § 16.1-283(B) and Code
§ 16.1-283(C)(2). On appeal, Rothgeb contends the trial court erred in (1) approving a foster
care plan authorizing the adoption of the children and terminating her parental rights pursuant to
Code § 16.1-283(B), and (2) ordering termination of her parental rights despite her compliance
with the requirements imposed upon her by the Harrisonburg Rockingham Department of Social
Services (DSS). Upon reviewing the record and briefs of the parties, we conclude this appeal is
without merit. Accordingly, we summarily affirm the decision of the trial court. See Rule
5A:27.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I.
On appeal, 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.’” 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 her marriage to William Rothgeb (the father).1 At the time
of the termination hearing in the trial court, W. was twelve years old, B. was nine, and E. was
seven. All three children had been in foster care for thirty-eight of the fifty-eight months
preceding the termination hearing.
When living in the home with Rothgeb and the father, the children were subjected to
repeated instances of physical abuse by the father, who drank alcohol to excess regularly.
Rothgeb, however, failed to protect the children or to remove them from the home. Rothgeb and
the father frequently resorted to physical violence upon each other in the presence of the
children. One neighbor testified that after fights between Rothgeb and the father, he had seen the
father’s nose broken and bloodied twice. Rothgeb and the father “fought a lot more after the kids
came back” from stays in foster care.
In addition, the children were found to be inadequately supervised on numerous
occasions. When she was two years old, E. was removed from the home and placed in foster
care for about a month in August 2000 following several episodes of her wandering the streets
1
The trial court also terminated the father’s parental rights to W., B., and E. We affirmed
the trial court’s decision on December 28, 2006. See Rothgeb v. Harrisonburg Rockingham
Department of Social Services, Record No. 1396-06-3.
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unsupervised.2 There were numerous founded complaints of neglect where the children were
discovered wandering or playing in the street and at risk of being struck by vehicles. In May
2001 all the children were removed from the home following a complaint that W., then age
seven, was wandering in the street.
In the summer of 2002, the children were returned to the home on a trial basis. DSS
provided the family with in-home services to help with various issues, including parenting and
supervision. However, Rothgeb continued to allow the children outside unsupervised while she
slept inside the home. Ultimately, due to concerns regarding the children’s cleanliness and their
potentially dangerous interactions with the family’s pit bull dogs, the children were again
returned to foster care in September 2002.
The children were returned to the legal custody of Rothgeb and the father in October
2003. On October 14, 2003, the father, while drunk, grabbed Rothgeb around the neck and
choked her. He turned over furniture and destroyed property in the house. Rothgeb struck the
father in the face several times. As a result, Rothgeb became covered in the father’s blood. The
children were present and witnessed the incident.
In July 2004, Rothgeb and the father were arguing in front of the entire family outside the
home. The father tried to prevent Rothgeb from leaving in the car. Rothgeb turned the steering
wheel of the car and “gunned it” in reverse in the father’s direction so he could not escape being
struck by the vehicle. In the process, the vehicle pulled the father to the ground and ran over his
legs. The children witnessed the incident from the front porch of the home. On July 16, 2004,
the children were removed from the home and remained in foster care until the termination
hearing.
2
In the final episode before the 2000 removal, E. was found in the road by a truck driver.
E.’s diaper was filled with urine and feces to the extent that it leaked through the sleeper she was
wearing.
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Following the final removal of the children, Rothgeb informed DSS that she had enlisted
in the National Guard and would be gone for eighteen weeks of training. Rothgeb expressed no
concerns about the effect of her absence upon her children. During her absence, Rothgeb did not
maintain contact with the children through letters or other means. Rothgeb had two visits with
the children during her training period. At those visits, she threatened them and demanded
physical affection from them. Rothgeb would grab and hold the children, and they would beg
her not to hurt them. B. told DSS that during one of the visits Rothgeb had hit him with a bat.
Rothgeb also made promises to the children that she never fulfilled, such as building a clubhouse
for them and buying them a horse when she returned from training.
When Rothgeb returned from her training in February 2005, DSS advised her that she
was required to complete, among other things, a psychological evaluation, anger management
classes, and parenting classes, as well as demonstrate appropriate understanding of her children’s
needs and parenting skills. DSS told Rothgeb to contact the agency once she had completed her
psychological evaluation and substance abuse evaluation.
All the children had special needs resulting from various diagnosed conditions. W. had
been diagnosed with Pervasive Developmental Disorder with autistic features. He also had been
diagnosed with Cognitive Disorder and Depressive Disorder. W. exhibited behavior that was
very difficult to control, and he suffered from encopresis, enuresis, and speech impairments. W.
had been placed in a therapeutic foster home, where he received the counseling, supervision, and
structure he needed.
During the period of time B. was residing with Rothgeb, his school record was replete
with instances of misbehavior, unacceptable language, disrespect for school personnel, and
aggression toward other children. Rothgeb did not follow the school’s requests that B. be
provided with counseling. After his final removal from the home, B. was diagnosed with major
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depression with behavioral issues. B. also suffered from encopresis and enuresis. In counseling,
B. blamed his anger and aggressive behavior upon the violence he had witnessed in Rothgeb’s
home. B.’s management of his behavioral issues had improved through counseling while he was
in foster care, and he was performing well in school. Nonetheless, his counselor opined that B.’s
condition required him to remain in a stable and structured family situation with a great deal of
consistency.
At the time of the termination hearing, E. continued to suffer from post traumatic stress
syndrome, which her counselor believed to be a direct result of the violence E. had experienced
and witnessed in her home. During counseling, E. expressed that she loved her parents, but
feared them as well. E. had made progress while in foster care, was doing well in school, and
had learned how to better control her behavior.
After Rothgeb completed the required psychological and substance abuse evaluations in
2005, she did not contact DSS for further referrals for counseling specifically related to the
special needs of the children. During her supervised visits with the children, Rothgeb
demonstrated inadequate parenting skills. She would tease and insult B. and W. about their
personal hygiene. Rothgeb refused to recognize that her children had been diagnosed with
special needs that would need to be addressed on a consistent basis. Rothgeb failed to keep DSS
consistently advised of her place of residence or her emergency contact information. Rothgeb
finally obtained a residence, however, she permitted the father to move in after he was released
from incarceration for various alcohol-related offenses. The home Rothgeb had obtained
smelled strongly of cat urine, and there were feeding and drinking bowls for cats on the kitchen
counters. If reunited with the children, Rothgeb planned for the father to have caretaking
responsibility for the children after they returned home from school and while she worked.
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In July 2005, after having removed the children from the home and placed them in foster
care three times, DSS finally reached the point where “we just felt we really needed permanency
for these children, that [Rothgeb and the father] 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.
Dr. Joann Grayson, a clinical psychologist, reported in July 2005 regarding her most
recent evaluation of Rothgeb, whom Grayson had evaluated several years before. Grayson’s
testing demonstrated that Rothgeb’s skills were “adequate for minimal parenting.” However,
Rothgeb was unable to describe the specific special needs of her children. Grayson opined that
the children remain at a high risk of neglect if left in their mother’s care.
The trial court concluded that the level of violence to which the children had been
exposed was “catastrophic.” Regarding the history of physical violence between Rothgeb and
the father, the trial court observed that Rothgeb “gave as good as she got in this thing.” 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,” the trial court found that clear and convincing evidence proved
that termination, as recommended by the children’s guardian ad litem, was appropriate. The trial
court entered orders terminating Rothgeb’s residual parental rights under Code § 16.1-283(B)
and 16.1-283(C)(2).
II.
Rothgeb argues that DSS did not establish by clear and convincing evidence the factors
required for termination under Code § 16.1-283(B)(1) and (2).3 She further contends that, because
3
As a part of her question presented, Rothgeb challenges the approval of the foster care
plan with the goal of adoption rather than returning the children home. However, as we conclude
that the termination petitions were proven by clear and convincing evidence, our analysis
necessarily subsumes Rothgeb’s challenge to the court’s approval of DSS’s goal of adoption
because “a preponderance-of-the-evidence standard governs judicial modification of foster care
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she completed the requirements imposed upon her by DSS, and because DSS failed to provide her
with services to assist her understanding of her children’s special needs and the skills needed to
parent them appropriately, the trial court erred in terminating her parental rights pursuant to Code
§ 16.1-283(C)(2).
Rothgeb’s arguments fail to 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 Fields v. Dinwiddie County Dep’t
of Soc. Servs., 46 Va. App. 1, 8, 614 S.E.2d 656, 659 (2005). Thus, the only issue we must decide
is whether sufficient facts support the trial court’s decision to terminate Rothgeb’s parental rights
under subsection (B). In answering that question, we presume the trial court “‘thoroughly weighed
all the evidence, considered the statutory requirements, and made its determination based on the
child[ren]’s best interests.’” Id. at 7, 614 S.E.2d at 659 (quoting Farley v. Farley, 9 Va. App. 326,
329, 387 S.E.2d 794, 796 (1990)).
Under Code § 16.1-283(B), the parental rights of parents of neglected or abused children
may be terminated if the court finds by clear and convincing evidence that termination is in the best
interests of the children 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. In making this determination, the
court shall take into consideration the efforts made to rehabilitate
the parent or parents by any public or private social, medical,
plans.” Toms, 46 Va. App. at 265 n.3, 616 S.E.2d at 769 n.3. Thus, this question need not be
addressed further.
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mental health or other rehabilitative agencies prior to the child’s
initial placement in foster care.
Rothgeb argues the condition that constituted the substantial threat to the children’s life,
health, and development was inadequate supervision and that this condition was remedied at the
time the children were returned to the legal custody of their parents in October 2003. This
argument ignores the evidence of the pervasive violence and abuse in the home that resulted in
the final removal of the children from the home in July 2004. The evidence proved that the
father subjected the children to repeated physical abuse. Rothgeb, however, failed to protect the
children or remove them from the home. In addition, the children repeatedly witnessed physical
confrontations between Rothgeb and the father, resulting in the father’s nose being broken more
than once. Most significant were the incidents in October 2003, in which Rothgeb struck the
father in the nose three times and became covered in his blood, and July 2004, when Rothgeb
intentionally ran over the father’s legs with the car. The trial court characterized the violence in
the home as “catastrophic,” and observed that Rothgeb “gave as good as she got.”
The detrimental effects of the domestic violence were far from “unclear,” as Rothgeb
suggests. B., with major depression, blames his anger and aggression upon the violence he
witnessed and experienced in the home. E. suffers from post traumatic stress syndrome as a
result of her experience in Rothgeb’s home. Despite their special needs, all three children had
made progress academically and emotionally after removal from Rothgeb’s care and exposure to
the continued domestic violence.
Rothgeb contends DSS had provided her with no services to equip her to meet her
children’s special needs. However, “[n]othing in Code § 16.1-283 or the larger statutory scheme
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
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create specific time frames” within which rehabilitative services must be provided to a parent
after the child enters foster care. Id. at 269, 616 S.E.2d at 771.
We recognize that “’[t]he termination of [residual] parental rights is a grave, drastic and
irreversible action.’” Helen W. v. Fairfax County Dep’t of Human Dev., 12 Va. App. 877, 883,
407 S.E.2d 25, 28-29 (1991) (quoting Lowe v. Dep’t of Public Welfare of Richmond, 231 Va.
277, 280, 343 S.E.2d 70, 72 (1986)). However, “[i]t 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 County Dep’t of Soc. Servs., 10
Va. App. 535, 540, 394 S.E.2d 492, 495 (1990). In determining what is in the best interests of a
child, we have stated:
a court must evaluate and consider many factors, including the age
and physical and mental condition of the child or children; the age
and physical and mental condition of the parents; the relationship
existing between each parent and each child; the needs of the child
or children; the role which each parent has played, and will play in
the future, in the upbringing and care of the child or children; and
such other factors as are necessary in determining the best interests
of the child or children.
Barkey v. Commonwealth, 2 Va. App. 662, 668, 347 S.E.2d 188, 191 (1986).
The evidence supports the trial court’s conclusion that termination of Rothgeb’s parental
rights was in the best interests of the children. Before the termination hearing, the children had
spent thirty-eight of the preceding fifty-eight months in foster care. While in foster care, the
children were receiving the specialized care that their conditions require for them to succeed.
Moreover, Rothgeb’s reunification plan includes the active participation of the father, whose
parental rights to the children also have been terminated. It is clearly not in the children’s best
interests to return them to a potentially volatile household. As we have observed, “‘past actions
and relationships over a meaningful period serve as good indicators of what the future may be
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expected to hold.’” Winfield v. Urquhart, 25 Va. App. 688, 696-97, 492 S.E.2d 464, 467 (1997)
(quoting Linkous v. Kingery, 10 Va. App. 45, 46, 390 S.E.2d 188, 184 (1990)).
III.
Because sufficient evidence supports the trial court’s decision, we affirm the termination
of Rothgeb’s parental rights pursuant to Code § 16.1-283(B).
Affirmed.
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