Kimberlee Ann Lefler v. Smyth County DSS

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Coleman
KIMBERLEE ANN LEFLER
v. Record Nos. 2706-00-3 and MEMORANDUM OPINION *
2707-00-3 PER CURIAM
MAY 8, 2001
SMYTH COUNTY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF SMYTH COUNTY
Charles H. Smith, Jr., Judge
(Danny R. Lowe; Lowe & Money, P.C., on
brief), for appellant. Appellant submitting
on brief.
(Amelia L. Bland; Bland & Associates, P.C.,
on brief), for appellee. Appellee submitting
on brief.
Kimberlee Ann Lefler appeals the decision of the trial court
terminating her residual parental rights to her two children
pursuant to Code § 16.1-283(C). Lefler contends the trial court
erred in finding the evidence sufficient to terminate her rights.
For the following reasons, we affirm.
Lefler and her husband had two children, a daughter born on
December 26, 1992 and a son born on August 31, 1994. The parental
rights of Lefler's husband were terminated on July 7, 1998.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
At a hearing held on August 26, 1999, Melanie Carpenter, a
foster care worker for the Smyth County Department of Social
Services (the Department), testified that the Department had
worked with the Lefler family since 1995, providing the family
with "every service" that was available to them and furnishing
some of the services on more than one occasion. The Department
originally became involved with the family in response to
complaints in 1995 that the children were being neglected and the
parents were having numerous physical altercations. From December
1995 to June 1996, the Department provided services for the Lefler
family to assist them in maintaining a stable home environment at
a cost of more than $3,400. The assistance included payments for
rent and other in-home services.
In addition, Lutheran Family Services (LFS) worked with the
family from November 1995 until February 1996. LFS provided
crisis intervention, parenting techniques, and assistance to both
parents in finding employment. They assisted the family in
applying for Medicaid and food stamps. LFS also furnished housing
and resource needs, including furniture, food and money for
utilities. LFS discharged the family from the program because
they failed to meet the goals of the program. At the time of the
discharge, Lefler's husband no longer resided with the family,
Lefler was in jail, and the children had been placed in foster
care.
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Family Preservation Services provided services for the family
from April 1, 1996 to July 30, 1996. They provided transportation
for Lefler to seek employment and to attend court hearings. They
arranged for Lefler to attend substance abuse and domestic abuse
support groups, and they arranged for day care so she could attend
these meetings. These services were terminated when the family
moved to Florida.
In April 1996, Lefler and her estranged husband had a
physical altercation in the presence of the children, resulting in
their son receiving scratches from broken glass. In May 1996,
Lefler and her husband had a physical altercation during which
Lefler cut her husband with a knife. The children were present in
the home during that incident.
In addition, Lefler had numerous misdemeanor and felony
convictions related to bad check charges. During one period of
time, the Department provided respite care for the children on the
weekends that Lefler spent in jail.
In September 1995, the court entered a preliminary
protective order against the children's father, ordering him to
stay away from the children. On February 8, 1996, Lefler signed
temporary entrustment agreements entrusting the children to the
Department to place them in a foster home while she was
incarcerated for bad check convictions. Carpenter testified that
the entrustment agreements "lasted" until March 3, 1996. The
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Department provided in-home services to assist Lefler when the
children were returned to her care in March 1996 after her release
from jail.
The children were back in foster care in September 1996.
Prior to that placement, the Leflers had taken the children to
Florida despite the court order that Lefler's husband was not to
be in the presence of the children. While in Florida, the Leflers
had a domestic dispute, and they were arrested. The children were
placed in foster care in Florida, and the Florida Department of
Health and Rehabilitative Services contacted the Department to
take custody of the children. When Carpenter met the children at
the airport on their return from Florida, the children attempted
to bite and kick her.
When Lefler returned to Virginia from Florida, she was
intermittently imprisoned for most of two years for numerous bad
check charges. On September 3, 1996, the court awarded the
Department temporary custody of the children. The Department
placed the children in a foster home while Lefler was
incarcerated.
Carpenter testified that when the children first came into
foster care "they had a lot of behavioral problems." Both
children were diagnosed with ADHD and speech problems. Both
children were prescribed Ritalin. While Lefler was incarcerated,
the daughter received speech and behavioral therapy. Carpenter
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testified the daughter's behavior "improved greatly" while she was
in foster care, and she appeared to be "more calm" and "very
polite." Carpenter also testified that the son's behavior
improved a "great deal" while he was in foster care.
During Lefler's two-year period of incarceration, Carpenter
spoke with Lefler several times concerning the service plan and
the goals Lefler would need to meet within the first six months
after her release from prison in order for the children to be
returned to her. Carpenter advised Lefler that the Department had
offered services "for so long that [they] felt like these children
really needed to be in a stable home. They needed security."
Lefler was released from prison in June 1998. The children
were placed back with Lefler in August 1998. Lefler had obtained
housing and employment, and she had made progress in stabilizing
her life. However, Lefler's husband moved in with the family,
resulting in Lefler losing her housing. Lefler then moved to
South Carolina with her husband and took the children with her in
violation of a protective court order. At the time, the
Department was the legal custodian of the children, and the
protective order issued against Lefler's husband remained in
effect. Lefler did not obtain the Department's permission to move
the children out of state.
The Department retrieved the children from South Carolina in
November 1998. At that time, the children showed aggressive
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behavior. Both children had severe cases of head lice, colds, and
flea bites. They were dressed in dirty clothing, and the daughter
had insect bites on her arms and legs that she had scratched until
they bled. The son had an eye infection. Carpenter testified the
children were "wild" and appeared to be angry with everyone. They
destroyed their toys, made rude remarks, and the son kicked other
children.
Lefler pled guilty to abduction charges related to removing
the children to South Carolina, for which she served several
months in jail. The Department again placed the children in
foster care, and the foster care service plan goal was changed
from "return to parent" to "adoption." The Department maintained
legal custody of the children. Carpenter testified that the
children visited Lefler while she was incarcerated, but they were
"hard to control" after they visited her. Sometimes the children
did not want to visit Lefler.
In total, the children were in foster care from February 8,
1996 until March 1996, from September 1996 until August 1998, and
from November 1998 until the hearing date of August 26, 1999. The
son had spent over one-half of his life in foster care, and the
daughter had spent over one-third of her life in foster care.
Carpenter opined that the best interests of the children
would be promoted by terminating Lefler's residual parental
rights. Carpenter stated that the children need a stable home
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environment which Lefler cannot provide. She testified that since
1995, the Department had offered Lefler every available service in
order to keep the children in her custody and that Lefler had not
substantially benefited from the services.
The foster care plans dated August 18, 1998 provided that
within a six-month time period Lefler was expected to accomplish
the goals established in the service plan. The program goal was
to return the children to Lefler upon her release from jail. In
order to achieve that goal, Lefler was to secure housing,
employment, stay away from her husband, and continue substance
abuse counseling, if necessary, within six months of her release
from jail. The evidence showed that Lefler failed to meet these
goals.
In March 1999, the Department again filed a foster care
service plan for each of the two children. This plan stated, "The
goal of returning to parent was not selected for these children
because placing them back with mother would place them at great
risk for emotional and physical harm." This plan also indicated
that the children had "special needs due to being hyperactive and
having speech problems" and that the foster parents had "worked
diligently" on helping the children. The foster parents also
provided "the love, care and support" the children needed.
Therefore, the Department changed the goal of the plans from
"return to parent" to "adoption" for the children only after it
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became apparent that, despite the Department's rehabilitative
efforts, Lefler was unable to achieve the goals of the first plan.
Lefler testified she intends to divorce her husband. While
incarcerated, Lefler took parenting and anger management classes.
She also received counseling for substance abuse. She stated she
had not consumed alcohol for thirty-seven months, and she had
obtained steady employment. At the time of the hearing, she had
adequate housing.
In the opinion of the guardian ad litem for the children, the
best interests of the children would be served by terminating
Lefler's parental rights.
"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.'" Id. (citation omitted). The trial court's findings,
"'when based on evidence heard ore tenus, will not be disturbed on
appeal unless plainly wrong or without evidence to support it.'"
Id. (citation omitted).
The trial court terminated Lefler's residual parental rights
pursuant to Code § 16.1-283(C)(1). Code § 16.1-283(C)(1)
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provides, in pertinent part, that the residual parental rights of
a parent of a child placed in foster care may be terminated if the
court finds by clear and convincing evidence that termination is
in the child's best interests and that
[t]he parent . . . [has], without good
cause, failed to maintain continuing contact
with and to provide or substantially plan
for the future of the child for a period of
six months after the child's placement in
foster care notwithstanding the reasonable
and appropriate efforts of social, medical,
mental health or other rehabilitative
agencies to communicate with the parent
. . . and to strengthen the parent-child
relationship.
The evidence showed that the Lefler family had been "in the
system" since 1995. The Department and several other family
service organizations offered Lefler "every service available" to
her from 1995 until 1999, attempting to assist Lefler in
stabilizing her marriage and working to provide a healthy and
secure environment for her two children. Despite this extensive
assistance, Lefler made little substantive improvement in her
ability to maintain a stable lifestyle. In addition, she failed
to maintain continuing contact with the children when she
repeatedly spent periods of time incarcerated, once for a
continuous period of almost two years.
At one point, Lefler signed temporary entrustment agreements
granting the Department the responsibility for the care and
custody of her children while she was in jail. These recurring
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periods of incarceration, leaving the children in the care of the
Department, are a factor to consider when determining whether
termination of Lefler's residual parental rights is in the
children's best interests.
[W]hile long-term incarceration does not,
per se, authorize termination of parental
rights . . . it is a valid and proper
circumstance which, when combined with other
evidence concerning the parent/child
relationship, can support a court's finding
by clear and convincing evidence that the
best interests of the child[ren] will be
served by termination.
Ferguson v. Stafford County Dep't of Soc. Servs., 14 Va. App. 333,
340, 417 S.E.2d 1, 5 (1992).
Twice Lefler violated court orders by moving the children out
of state with her husband and without advising the Department
prior to the move. Lefler allowed her husband to live in her home
despite the court's issuance of a protective order against him and
despite the goal established by the Department that she stay away
from her husband. Furthermore, the children have emotional and
learning difficulties that are being addressed while they are in
foster care. The children's behavior and speech problems improved
while they were in foster care. The son had spent over one-half
of his life in foster care, and the daughter had spent over
one-third of her life in foster care. "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
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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).
While the evidence shows that Lefler loves her children, the
evidence shows that she has substantially failed to maintain
continuing contact with the children and to provide or
substantially plan for the future of the children for a period of
six months after their placement in foster care, notwithstanding
the efforts of the Department and other rehabilitative agencies.
Although Lefler attended parenting and anger management classes
while incarcerated, and she was employed at the time of the
hearing, Lefler's past history shows that she has not made the
necessary and substantial changes in her life to provide for the
children if they were returned to her.
Therefore, the record supports the trial court's finding
that the Department presented clear and convincing evidence
satisfying the statutory requirements of Code § 16.1-283(C)(1)
and establishing that termination of Lefler's residual parental
rights is in the children's best interests. Accordingly, the
decision of the trial court is affirmed.
Affirmed.
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