Neketia Jackson v. Lynchburg Department of Social Services ( 2011 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Haley, McCullough and Senior Judge Willis
NEKETIA JACKSON
v. Record No. 0472-11-3
LYNCHBURG DEPARTMENT OF SOCIAL SERVICES
MEMORANDUM OPINION *
RODNEY SPRADLEY PER CURIAM
SEPTEMBER 6, 2011
v. Record No. 0473-11-3
LYNCHBURG DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
(Gary M. Coates, on brief), for appellant Neketia Jackson.
(Ronald D. Henderson, on brief), for appellant Rodney Spradley.
(Susan L. Hartman, Assistant City Attorney; James C. Reeves, III,
Guardian ad litem for the minor children, on brief), for appellee.
Neketia Jackson (mother) and Rodney Spradley (father) appeal the trial court’s orders
terminating their parental rights to their four children pursuant to Code § 16.1-283(C)(2). They
contend the trial court erred in finding that the evidence was sufficient to prove that termination
was in the best interests of the children and that they were unwilling or unable within a
reasonable period of time to remedy substantially the conditions which led to the placement of
the children into foster care. Upon reviewing the record and briefs of the parties, we conclude
that these appeals are without merit. Accordingly, we summarily affirm the decisions of the trial
court. See Rule 5A:27.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND
On appeal, we view the evidence in the light most favorable to the prevailing party below
and grant to it all reasonable inferences fairly deducible therefrom. Logan v. Fairfax Cnty. Dep’t
of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991). “Where, as here, the court
hears 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 Cnty.
Dep’t of Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986) (citations omitted).
Mother and father had four children together: two boys, R.S. (born October 21, 1999)
and T.J.S. (born July 30, 2001); and two girls, T.S. (born March 24, 2003) and R.J.S. (born April
12, 2004). Mother and father are not married. In August 2007, father and mother separated, and
father moved from the family’s apartment into an apartment leased by father’s girlfriend, who
had a child of her own. Father later had a child with the girlfriend, and at the time of the hearing,
father was still living with the girlfriend, who was pregnant with father’s second child. The
apartment lease is in the girlfriend’s name. Although father no longer lived with mother and the
children, he provided support and assistance.
The Lynchburg Department of Social Services (LDSS) became involved with mother and
the four children in February 2008, after receiving a child protective services (CPS) complaint
that the youngest child, R.J.S., then not quite four years old, was playing outside unsupervised.
A CPS worker visited mother a few days later. Although mother was “not cooperative or
receptive to services,” she signed an agreement to provide adequate supervision to the children.
On May 2, 2008, a man saw R.J.S. and T.S. outside mother’s apartment unsupervised. One child
was in a car playing with the gearshift while the other child was under the wheel of the car. The
man reported the incident to CPS. When the CPS worker came to the house, mother was not
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there. The oldest child (R.S.), then eight years old, was alone inside. Mother arrived in a car a
few minutes later. Mother denied any wrongdoing or blame, but agreed to sign a safety plan.
On May 10, 2008, LDSS learned that mother was facing eviction due to rodent
infestation. At that time, LDSS became aware of several additional complaints, such as the
apartment walls were black with dirt, there was rotting food in the house, neighbors saw the
children hanging out of the second story windows, and there were men and drug activity in and
out of the residence between 6:00 p.m. and 4:00 a.m. Finally, it was reported that R.S. defecated
on a neighbor’s doorstep because he could not get into the apartment to use the restroom. Based
on these complaints, a CPS worker spoke with mother about her concerns. Mother denied the
complaints and continued to minimize the situation.
On May 13, 2008, mother and father agreed to a safety plan whereby the children were to
live with father, and mother could visit them at father’s home until LDSS said it was safe for
them to return home. On May 16, 2008, LDSS received a call that the two girls were back at
mother’s apartment. LDSS arrived to remove the children, but mother and father had taken them
to another location. When LDSS found them, they were with mother’s aunt, who smelled of
alcohol.
On May 16, 2008, LDSS removed the children and placed them in foster care. LDSS
provided services to the parents and children and directed the parents to undergo psychological
examinations, take parenting classes, attend counseling, abstain from illegal drug use, obtain safe
housing, and find stable employment. The parents were permitted weekly visitation with the
children on condition they produce negative drug screenings. Mother produced a negative screen
in July 2008. Father was not able to do so until August 2008.
The initial foster care service plans had a goal of returning the children home. On
January 19, 2010, twenty-one months after removing the children, LDSS amended the service
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plan goal to termination with a goal of adoption, and it filed petitions in the juvenile and
domestic relations district court (juvenile court) to terminate the parents’ rights. On June 23,
2010, the juvenile court granted the termination petitions. The parents appealed, and the trial
court conducted a de novo hearing on October 14, 2010.
LDSS foster care worker April Watson worked with the parents and children throughout
the case and testified that mother completed a parenting class. Watson referred mother to a
counselor (with Alliance for Families and Children) when the children first came into foster care.
Although mother and the counselor met several times, mother did not follow up with that
counselor, so Watson later referred mother to another counselor, Mary Rice. Mother also
received in-home counseling from Jennifer Bointnott. Watson testified that mother did not
maintain stable housing or employment during the more than two-year period LDSS had the
case. Moreover, mother continued to maintain an abusive relationship with a man (Moore) in
spite of Watson’s repeated warnings that she stop putting herself and the children in such a
situation. There were at least three incidents of abuse by Moore against mother in July 2009,
October 2009, and March 2010.
Watson also testified that father did not maintain stable employment. She recalled he
was employed from July 2008 until February 2009, but said there was a fifteen-month period
where he was not employed. At the time of the hearing, father was living in his girlfriend’s
apartment with two children and a third child on the way. Father’s marijuana use was a recurring
problem throughout the case, and Watson stated that the child that father and his girlfriend had in
May 2008 was “born prenatally exposed to marijuana.” Moreover, throughout the case, father
tested positive for marijuana three times, admitted consuming it nine times, and refused to take
tests seven times. Father’s most recent positive test was on June 23, 2010, and at the October 14,
2010 hearing, father admitted using marijuana “maybe a month ago.”
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Three of the parents’ four children “have been diagnosed with ADHD, PTSD,” and
receive ongoing services to address their psychological needs. LDSS contacted several relatives
to take custody of the children, but no one volunteered to do so. Watson observed several
visitations between the parents and children and noticed that during the later visits the children
would become upset after the visits. For example, she recalled the boys would cry, have
nightmares or wet the bed and “it would take several days to adjust to school after visitation.”
Other times, the children would become upset because mother would complain that she had no
money or food. When asked why LDSS supported termination Watson testified:
They have been in care for 30 months, which is over the
permanency timeline. The children, they want to know what is
going to happen. They want a decision to be made. It is affecting
them in school and other areas of their lives. . . . I have talked
many times [with the parents] about what they need to do.
I believe they love their children but I don’t believe they
took it serious[ly] enough and these children are just sitting and
waiting and I don’t think it is fair to them any more.
The two boys, R.S. and T.J.S., were placed together in a therapeutic foster home. T.S.,
the older female, was initially placed with her younger sister, R.J.S., in a regular foster home, but
was moved to a therapeutic foster home, different than the one in which the boys were placed,
due to her aggressive and hyperactive behavior. T.S. and the two boys meet regularly with the
same behavior specialist. R.J.S., the youngest child, remains in a regular foster home. All four
children are doing well in foster care, and the foster parents regularly take the children to meet
and play as a group.
Susan Henderson is a licensed professional counselor. She began working with T.S.,
R.S., and T.J.S. on July 18, 2008. Henderson testified that the three children exhibited “a lot of
behaviorial” and “attachment” issues based on their prior experiences with the parents that
required their placement into foster care and their having to process being separated from the
parents. T.S. indicated through statements and dolls there was verbal and physical abuse
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between the parents and between the parent and the children in the home. Henderson’s initial
diagnosis of T.S. was “adjustment disorder with mood and conduct,” which she later diagnosed
as posttraumatic stress disorder (PTSD). R.S. also showed signs of PTSD. All three of the
children reported that there were times when mother would forget to feed them. Initially, the
three children made progress during parent visitations; however, in the late summer of 2009, the
children exhibited stress and anxiety during visits that became evident in their behavior. T.S.
had nightmares, withdrawal symptoms, and exhibited aggressive behavior at her foster home.
The boys also had nightmares, and at school there were “conflicts with peers, oppositional
behavior with teachers . . . irritability, anxiety [and] crying episodes.” After LDSS changed the
goal from return home to adoption in mid-January 2010, visitation stopped for four to six weeks.
During that hiatus, T.S began showing a “remarkable turnaround in behavior anxiety level,” and
she became “cheerful, playful . . . [and] relaxed.” When T.S. learned in late February 2010 that
visitation would resume, “there was a traumatic change” in her. She became extremely sad and
irritable and displayed aggressive behavior with the pets in the home. T.S. also showed
“developmental regression in using baby talk” and “wetting herself,” and she began biting her
arm. T.S. became so distraught, Henderson recommend that T.S. be excused from the visitation.
Although T.S. eventually resumed attending visitation, her crying, aggression, and anxiety
persisted. In addition, the boys’ foster parents and teachers reported that they were also “more
relaxed during the time visitation stopped.” After visitation resumed in late February 2010, R.S.
began exhibiting “more sexualized behavior,” such as “touching himself in public places.” T.J.S.
and T.S. “tended to show more acting out behaviors.” Henderson opined that returning the
children to the parents would disrupt “an ordered and healthy attachment with the current foster
parents that has been existing for two and a-half years,” and the biological parents would need
additional “specialized parenting skills.”
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Dr. A. James Anderson conducted a psychological evaluation of mother on August 5,
2008. Mother “show[ed] marginal intellectual resources” and “some emotional and personality
problems that are likely to interfere with her functioning in the parent role.” Personality tests
showed mother to be “an insecure yet overly narcissistic individual with unusually strong
dependency needs.” She “is excessively self-focused and preoccupied with her own needs and
feelings to a degree that may prevent her from giving adequate attention to the needs and feelings
of others.” Dr. Anderson noted that mother appeared “well-intentioned and strongly motivated,”
but he said he had to emphasize to her how important it was that she actively and sincerely
participate in the services she was offered and show progress with the problems that limited her
parental effectiveness.
Dr. Anderson evaluated father on October 23, 2008, and reported that he scored in the
border range of intelligence. Personality tests suggested father was “an overly narcissistic,
egocentric, and dependent individual who tends to focus on his own needs and feelings to a
degree that interferes with his ability to give adequate attention to the needs and feelings of
others.” Dr. Anderson opined that father “shows less ability to tolerate stress, frustration, and
delay than most people,” and “[he] is oriented mainly toward immediate payoffs and short-term
goals rather than longer-range objectives.” Father’s tendency for “pleasure and stimulation over
achievement-oriented activities” often leads him “to act impulsively without sufficient exercise
of judgment.”
Rice, a licensed counselor, began counseling mother on February 11, 2009. Rice testified
that she “had grave concern[s]” that mother would be able to demonstrate an ability to meet the
needs of herself and the children. According to Rice, mother had a “huge narcissistic internal
focus on her needs” limiting her ability to take care of the children, and she was “very
dependant” on the father to perform parental functions, especially disciplining the two boys.
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Rice was also concerned with mother's inability to provide financial support for herself or the
children. Rice observed several parent visitation sessions and noticed that mother spent a lot of
time sending text messages on her cell phone. Although mother had some positive interactions
with the children, she would often “become quite emotional” with them or “display a very harsh
tone in her discipline.” The children became upset when mother became upset or told the
children about her personal problems. Although mother has made progress in her depression and
anger, she still struggles with those issues. Moreover, Rice recalled how mother denied
responsibility at first and was not fully committed, motivated, and concerned during the early
stage of the case, thus delaying improvement and progress. Because mother was not able to fully
understand or acknowledge her role in the children being removed, Rice did not think mother
could adequately and safely care for the children. When asked how much additional counseling
mother required, Rice opined “a year minimal and the concern is how engaged and how
committed to the process [mother] would be.” As to mother’s “personality disturbances,” Rice
stated “it is likely counseling will never remedy that.”
Vincent Jones provided mental health counseling to father and worked with him
regarding his role as a parent. Jones explained that father interacted well with the children and
cared for them, however, he had several personality difficulties, including narcissistic tendencies
in trying to help too many people and grief and depression issues because of the death of his
parents, the illness of his grandmother, and the loss of the children. Jones reminded father of his
many responsibilities and repeatedly advised him he needed to curb his use of marijuana. Jones
was not concerned with father’s efforts; rather his “concern[s were] the marijuana smoking and
the personality difficulties and loss issues.” Based on father’s personality issues, Jones felt it
would be “a significant challenge” for father to try to parent his four children and his girlfriend’s
three children and deal with the two mothers and maintain full-time employment. Because of the
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other issues father was dealing with, Jones felt father’s initial “focus was making sure the mother
had the children.”
The trial court found by clear and convincing evidence that neither parent had exhibited
the kind of stability needed to safely rear the children, termination was in the best interests of the
children, and the parents have been unable within a reasonable period of time to remedy the
conditions that brought them into foster care. The parents appeal those determinations.
ANALYSIS
Code § 16.1-283(C)(2) provides that residual parental rights may be terminated if it is in
the best interests of the child and
[t]he parent or parents, without good cause, have been unwilling or
unable within a reasonable period of time 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, mental health or other
rehabilitative agencies to such end.
When reviewing a decision to terminate parental rights, we presume the circuit court
“‘thoroughly weighed all the evidence, considered the statutory requirements, and made its
determination based on the child’s best interests.’” Toms v. Hanover Dep’t of Soc. Servs., 46
Va. App. 257, 265-66, 616 S.E.2d 765, 769 (2005) (quoting Fields v. Dinwiddie Cnty. Dep’t of
Soc. Servs., 46 Va. App. 1, 7, 614 S.E.2d 656, 659 (2005)). “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.’” Id. at 266, 616 S.E.2d at 769 (quoting Logan, 13 Va. App. at
128, 409 S.E.2d at 463). “In its capacity as factfinder, therefore, the circuit court retains ‘broad
discretion in making the decisions necessary to guard and to foster a child’s best interests.’” Id.
(quoting Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)).
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In determining what is in the best interests of a child, this Court has 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 children were placed in foster care in May 2008, following several incidents of
improper supervision, and they remained in foster care for over two years. At the time of
removal, mother and father, who are not married, had separated, and mother had custody of the
four young children. Mother and the children lived in unsanitary conditions, mother did not have
steady employment, and she was unable to provide necessary care and supervision. Father had
moved in with a girlfriend who had one child from another relationship, one child with father,
and another child on the way. Psychological tests showed that both parents had significant
personality disorders, however, when LDSS initially offered services, the parents did not become
fully engaged in the process. Neither parent was able to obtain stable, long-term employment or
stable, consistent housing, and father continued to abuse marijuana despite repeated warnings of
the negative ramifications from such activity. Three of the four children had significant
psychological problems requiring ongoing counseling. Evidence established that the children
were thriving in foster care, and the foster care families want to adopt them. Further evidence
indicated the children underwent a great amount of anxiety and stress during the lengthy period
they were in foster care awaiting some finality. Testimony from the experts working with the
parents indicated that neither parent was capable at the time of the October 2010 hearing to
properly care for the children, and at least another year of counseling and hard work was
required before either parent may be able to safely care for the children.
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We recognize that “‘[t]he termination of [residual] parental rights is a grave, drastic and
irreversible action.’” Helen W. v. Fairfax Cnty. Dep’t of Human Dev., 12 Va. App. 877, 883,
407 S.E.2d 25, 28-29 (1991) (quoting Lowe v. Dep’t of Pub. 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 responsibilities.” Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 10 Va. App. 535,
540, 394 S.E.2d 492, 495 (1990).
Both parents testified to their love for their children, and took steps, including attending
counseling, to become better parents. The record, however, fully supports the trial court’s
finding that clear and convincing evidence proved the best interests of R.S., T.J.S., T.S., and
R.J.S. would be served by terminating the parental rights of each parent pursuant to Code
§ 16.1-283(C)(2) and that the parents have been unable within a reasonable period of time to
remedy substantially the conditions which led to the placement of the children in foster care.
Accordingly, we summarily affirm the decisions of the trial court. Rule 5A:27.
Affirmed.
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