Lavicie N. Sawyers, s/k/a v. Tazewell Co. DSS ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Frank
Argued at Salem, Virginia
LAVICIE N. SAWYERS, SOMETIMES KNOWN AS
LAVICIE ANN SAWAYERS
MEMORANDUM OPINION * BY
v. Record No. 1605-99-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
MAY 9, 2000
TAZEWELL COUNTY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
Donald R. Mullins, Judge
H. Shannon Cooke for appellant.
Stephen E. Arey for appellee.
Felicia H. de Courcy (Henderson & de Courcy,
on brief), Guardian ad litem for the minor
children.
Lavicie Ann Sawyers (Sawyers) appeals from a decision
terminating her parental rights on petition by the Tazewell County
Department of Social Services (DSS). She contends the trial court
erred in terminating her parental rights because: (1) she did not
receive a copy of the foster care plan in the de novo trial in
circuit court; (2) the trial court did not require DSS to elect
which subsection of Code § 16.1-283 was the basis of the petition;
and (3) the evidence was insufficient to terminate her parental
rights as a matter of law. For the following reasons, we affirm.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
As a preliminary matter, Sawyers contends that, although she
received a copy of the foster care plan filed in the juvenile
court, the plan was not refiled in the circuit court when the
initial decision was appealed. Thus, she argues, the trial court
failed to follow the procedural requirements of Code §§ 16.1-281
and -283. This argument is controlled by Todaro v. Alexandria
Dep't of Soc. Serv., 226 Va. 307, 309 S.E.2d 303 (1983) (per
curiam). In Todaro, the Supreme Court held that "[a]lthough the
appeal to the circuit court requires a trial de novo, a refiling
of the plan in the circuit court, while perhaps advisable, is not
required." Id. at 308-09, 309 S.E.2d at 304 (emphasis added).
Because the foster care plan was timely filed in the juvenile
court proceedings and made available to all interested parties, we
find no error.
Next, Sawyers contends the trial court erred in failing to
require DSS to elect which subsection of Code § 16.1-283 was the
basis for the petition for termination of parental rights. She
argues that the trial court's decision to proceed under both
subsection (B) and subsection (C) of Code § 16.1-283 was
prejudicial and placed an undue burden on her ability to defend
the petition. We disagree.
Code § 16.1-283 establishes the procedures and grounds under
which a court may order the termination of residual parental
rights. Pursuant to Code § 16.1-283(B), the court may terminate
the residual parental rights of a parent of a child who has been
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neglected 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) (emphasis added). Prima facie evidence of the
conditions set forth in subsection (B)(2) exists when there is
proof that the parent, "without good cause, [has] 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 . . . prevent
the neglect . . . of the child." Code § 16.1-283(B)(2)(c).
Alternatively, Code § 16.1-283(C)(2) provides that parental
rights may be terminated if the court finds by clear and
convincing evidence that it is in the best interests of the child
and that
[t]he parent . . . , without good cause,
[has] been unwilling or unable within a
reasonable period not to exceed twelve
months from the date the child was placed in
foster care to remedy substantially the
conditions which led to or required
continuation of the child's foster care
placement, notwithstanding the reasonable
and appropriate efforts of social, medical,
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mental health or other rehabilitative
agencies to such end.
Code § 16.1-283(C)(2) (emphasis added). Proof that the parent
has failed or been unable to make substantial progress towards
elimination of the conditions leading to the placement in foster
care shall constitute prima facie evidence of grounds for
termination. "The court shall take into consideration the prior
efforts of such agencies to rehabilitate the parent or parents
prior to the placement of the child in foster care." Id.
Both subsection (B) and subsection (C) of Code § 16.1-283
address substantially similar grounds for the termination of
parental rights. While Code § 16.1-283(B) places a "reasonable
time" limitation to remedy the conditions causing foster care
placement, Code § 16.1-283(C)(2) requires that the conditions be
remedied within "a reasonable time not to exceed twelve months."
Despite this minor distinction, we have previously upheld the
termination of parental rights in a case under both subsections of
Code § 16.1-283. See Fergusson v. Stafford County Dep't of Soc.
Serv., 14 Va. App. 333, 340, 417 S.E.2d 1, 5 (1992). DSS is not
barred from proceeding under more than one applicable subsection
of Code § 16.1-283 and, thus, the trial court did not err.
Finally, Sawyers contends that the evidence was insufficient
to terminate her parental rights. "When addressing matters
concerning a child, including the termination of a parent's
residual parental rights, the paramount consideration of a trial
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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). When reviewing the trial court's termination of parental
rights on appeal, we view the evidence in the light most favorable
to the prevailing party below. See id. Where the trial court
hears the evidence ore tenus, its decision is entitled to great
weight and will not be disturbed on appeal unless plainly wrong or
without evidence to support it. See Hawks v. Dinwiddie Dep't of
Soc. Serv., 25 Va. App. 247, 253, 487 S.E.2d 285, 288 (1997).
The trial court found that DSS presented clear and convincing
evidence meeting the statutory requirements of both Code
§ 16.1-283(B) and (C)(2). The trial court noted that DSS has
provided social services since March 1996 and, based on Sawyers'
failure to comply with DSS recommendations, the minor children
were removed from her home on July 10, 1997. Significantly, the
trial court found that throughout the proceedings Sawyers "has
continued to place other matters above the welfare of her
children" and that "she has placed her affection for her paramour
above the welfare of the children."
Despite the social services provided, Sawyers did not
remedy the conditions leading to the foster care placement of
her minor children. Sawyers violated an order of the juvenile
court by allowing Bobby Sawyers, her previous husband, to return
to the marital home, although he had been charged with sexual
abuse of his own daughter, who is also Lavicie Sawyers'
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stepdaughter. Thereafter, Sawyers placed her stepchildren in
the custody of a relative of Bobby Sawyers, an additional
violation of court orders. At the time of the hearing in this
matter, Sawyers had established a residence with her boyfriend,
Roy Asbury, and continued to live with him despite DSS
recommendations. The trial court ordered Sawyers and Asbury to
attend counseling, to undergo psychological evaluation, and to
obtain and maintain regular employment. Asbury discontinued
visitation sessions with the children and refused to undergo the
psychological evaluation. Sawyers supported Asbury's decision
and, according to psychologist Steve Farris, she would "give in"
to what Asbury wanted.
Put simply, Sawyers has demonstrated a two-year history of
failing to follow through with recommendations and treatment
plans provided by DSS, a period far in excess of twelve months.
"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 [her] responsibilities."
Kaywood v. Halifax County Dep't of Soc. Servs., 10 Va. App. 535,
540, 394 S.E.2d 492, 495 (1990). The trial court's finding that
the termination of Sawyers' residual parental rights was in the
children's best interest and that DSS presented clear and
convincing evidence to meet the requirement of Code
§ 16.1-283(C)(2) was supported by the record.
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For the foregoing reasons, we affirm the judgment of the
trial court.
Affirmed.
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