Bonita Hansberry v. Charlottesville Dept. Social Sv ( 2003 )


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  •                       COURT OF APPEALS OF VIRGINIA
    Present:   Judges Frank, Clements and Senior Judge Bray
    BONITA HANSBERRY
    MEMORANDUM OPINION *
    v.   Record Nos. 0117-03-2 through                 PER CURIAM
    0120-03-2                       JUNE 17, 2003
    CHARLOTTESVILLE DEPARTMENT
    OF SOCIAL SERVICES
    FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
    Joseph F. Spinella, Judge Designate
    (Richard A. Davis, on brief), for appellant.
    (Allyson Manson-Davies, Assistant City
    Attorney, on brief), for appellee.
    In four separately filed and numbered appeals, Bonita
    Hansberry (mother) appeals the decision of the circuit court
    terminating her parental rights to four of her children:   Dashad
    Hansberry (Rec. No. 0117-03-2); Rashad Hansberry (Rec. No.
    0118-03-2); China Hansberry (Rec. No. 0119-03-2); and Kierra
    Hansberry (Rec. No. 0120-03-2).   She contends the evidence was
    insufficient to support the terminations under subsections (B)
    or (C) of Code § 16.1-283.   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.
    Rule 5A:27.
    * Pursuant to Code § 17.1-413, this opinion is not
    designated for publication.
    BACKGROUND
    On appeal, we view the evidence and all the reasonable
    inferences therefrom in the light most favorable to appellee as
    the party prevailing below.       McGuire v. McGuire, 
    10 Va. App. 248
    , 250, 
    391 S.E.2d 344
    , 346 (1990).       So viewed, the evidence
    showed that during a course of time, the Charlottesville
    Department of Social Services (CDSS) removed four of appellant's
    children from her home and placed them in foster care.
    The Twins:    Rashad and Dashad
    On April 21, 2000, three-month-old Rashad was taken to UVA
    Hospital after a "Child Health Partnership home visitor" observed
    bruising on Rashad's face.    Mother said she was not present during
    the injury, but she suspected that China, her three-year-old
    daughter, was in the crib with Rashad and likely caused the injury
    by jumping on him.    A CDSS worker recalled that mother tried to
    avoid treatment and remove Rashad from the hospital, and she was
    reluctant to cooperate with hospital staff.       Rashad was released
    from the hospital on April 22, 2000.       On May 16, 2000, a pediatric
    specialist referred Rashad "to an early infant early intervention
    program, Babies Can't Wait, for developmental delays."      Records
    showed that Rashad will also need "physical, occupational, speech
    therapy and follow-up care with opthamology due to facial bruising
    on 4-21-00."
    CDSS prepared a foster care service plan for Rashad on June
    1, 2000, with a goal of "Return Home" and a target date of
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    November 25, 2000.   In order to achieve the goal of having
    Rashad returned home, mother was required to "create a safe,
    stable, maximally supervised home for Rashad and his twin
    brother."   She was required under the foster care service plan
    to "cooperate fully in recommended services," participate in a
    substance abuse evaluation, "follow-through with individual
    counseling," "maintain stable employment," "participate in
    behavorial intervention services" arranged by CDSS for China who
    may pose a threat to the younger children, comply with "further
    prevention services offered through Family Preservation
    Services," "enroll and successfully complete a parenting
    education class" by September 2000, provide CDSS with written
    documentation of successful completion and attendance in such a
    class, maintain contact with the foster care social worker at
    least once a month to discuss her case and arrange with CDSS in
    advance a visitation schedule.
    On April 24, 2000, CDSS took custody of Dashad, Rashad's
    twin brother.   CDSS alleged that Dashad "is at risk of being
    abused and neglected by his mother who has previously been
    adjudicated as having abused and neglected another child in her
    care."   Dashad's June 1, 2000 foster care service plan described
    a home visit by a CDSS worker at which the worker saw China hit
    Dashad repeatedly on the head.    The worker noted that Kierra,
    who was four years old at the time, fed Dashad.   As with Rashad,
    CDSS offered services to mother to help improve the safety and
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    supervision of the children in her home, including childcare
    services and in-home counseling.   Dashad's service plan required
    that he receive "the same services as his brother Rashad and
    . . . he will also require services through Babies Can't Wait,
    physical, occupational and speech therapy."   Mother was directed
    to comply with the same requirements as included in Rashad's
    foster care plan.   Dashad was placed with the same foster care
    family as Rashad.
    The record showed that mother had "two other children in
    foster care" prior to Rashad and Dashad's removal.   "Allan, age
    8, is currently receiving services from a children's residential
    facility, and Octavius, age 6, is currently in permanent foster
    care."   At the time of Dashad's removal, mother "refused any
    further prevention services for Kierra and China against CDSS'
    strong encouragement for her to do so."
    On June 16, 2000, the juvenile court found that Rashad and
    Dashad were neglected, and it directed CDSS to place them in
    foster care.   On June 28, 2000, the juvenile court found that
    "[r]easonable efforts have been made" by CDSS "to reunite [each]
    child with his" parent, and it approved the foster care plans,
    adding the following conditions:   (1) mother will "successfully
    work with a parenting 'coach' or other similar, one-on-one
    parenting skills counsel[or];" (2) mother will undergo a
    psychological evaluation; and (3) mother "will cooperate with
    CDSS in the provision of reasonable services or programs
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    designed to remedy the conditions that led to foster care"
    placement.
    On November 15, 2000, CDSS prepared foster care service
    plan reviews for the twins, with a program goal "Return Home"
    and a target date of June 2001 for goal achievement.
    On April 12, 2001, CDSS recommended that the goal of
    returning the children home be changed to adoption.    On June 1,
    2001, CDSS filed petitions to terminate mother's residual
    parental rights to the twins.
    On June 29, 2001, the juvenile court terminated mother's
    residual parental rights based on Code § 16.1-283(B).    Mother
    appealed to circuit court.
    The Girls:   China and Kierra
    China and Kierra Hansberry were placed in CDSS care on
    February 28, 2001, pursuant to Child in Need of Services (CHINS)
    petitions and orders.    Their initial April 12, 2001 foster care
    service plans had a program goal of "Return Home," with a target
    date of November 2001.    The plans noted founded dispositions of
    inadequate supervision for burns occurring to both girls in
    1998.    In addition, "[t]here have been three other founded
    dispositions made to various caretakers involving Ms.
    Hansberry's children including physical abuse in 1999,
    inadequate supervision in 1999, and sexual abuse in 1997."
    Before her removal, China, then three years old, "exhibited
    aggressive and out of control behavior," to which mother was
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    unable to set limits or boundaries.      For example, China "will
    climb on all types of furniture if given the opportunity."
    During an early home visit, a CDSS worker recalled how China
    "climbed on cabinets, the stove and cars in the parking lot."
    Test results found China to be "developmentally delayed" with
    "significant delays in personal/social skills, adaptive skills
    and motor skills."    "China is quick to hit others when she is
    frustrated," and she has a tendency to run out of the house by
    herself without supervision.    The CDSS case worker reported that
    China "witnessed a knife incident between her mother and
    biological father."
    Kierra received burns in 1998 that resulted in a "founded
    disposition of inadequate supervision."     At the time of the
    April 2001 report, Kierra was five years old and attended
    kindergarten.    Kierra exhibited signs of aggression and lacked
    self-control.    She was suspended from kindergarten for kicking a
    guest at the school.    During the school year, she spent
    weeknights "with different 'friends' in the neighborhood" and
    "most weekends with her paternal grandmother."     In 1999, Kierra
    and her brother "witnessed a stabbing murder in her home."
    China and Kierra were placed in the same therapeutic foster
    home.
    Updated foster care service plan reviews prepared in
    October 2001, reported that mother "declined to attend" or
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    participate in parenting classes and failed to maintain regular
    contact with CDSS and the social worker from People Places.
    In the January 28, 2002 foster care service plan review,
    CDSS requested a change in goal from return home to adoption.
    On April 18, 2002, CDSS petitioned for termination of
    mother's parental rights.   The juvenile court terminated
    mother's parental rights to China and Kierra on May 14, 2002.
    Mother appealed to circuit court.
    Trial De Novo
    On July 26, 2002, the trial court conducted a trial de novo
    on the four petitions to terminate mother's parental rights.
    The parties presented and the trial court admitted numerous
    documents and reports, including several foster care service
    plans and service plan reviews for each child, describing mother
    and the children at various times during CDSS's long-standing
    relationship with mother.   The documents detailed the extensive
    services offered to mother and her children over a long period
    of time and the progress made by each party.
    Dr. Jeffrey Aaron, a clinical psychologist, testified that
    he evaluated mother's emotional and cognitive functioning in
    August 2000.   Mother told Dr. Aaron that she did not want to
    participate, but was doing so only because CDSS made her.    From
    the outset, she "appeared angry and irritable and resistant."
    Mother "showed . . . a strong tendency to externalize blame and
    responsibility."   Test results showed her to have a "full scale
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    IQ" of 74, "which places her in the borderline range of
    cognitive functioning."   Persons within that range exhibit
    "deficits in their ability to engage in a wide range of
    cognitive tasks, particularly those that require complex or
    abstract reasoning, inferences about relationships . . . and
    related tasks."   Although persons functioning within the
    "borderline range" can "learn new skills and develop new
    abilities," Dr. Aaron opined that their "core deficits" such as
    an inability to "apply[] the learning to new situations,
    wouldn't be expected to change."   Dr. Aaron noted that mother is
    "likely to be emotionally reactive and hostile and oppositional,
    particularly when under stress."   This accounts for her having
    difficulty "trusting people, forming relationships, [and] making
    use of what other people could offer, in terms of providing
    assistance to her or her children."    Dr. Aaron opined as
    follows:
    [Mother's] general pattern of emotional and
    personality functioning, her tendency to
    deny problems and externalize blame, her
    tendency to become hostile and emotionally
    reactive, and the cognitive deficits that
    I've described, all of these things
    together, in my opinion, make it unlikely
    that she would be able to adequately
    identify and respond to her children's needs
    and meet them.
    Based on his assessment, Dr. Aaron felt there was "a poor
    likelihood" that mother could or would effect a "positive
    change."   Dr. Aaron believed mother might suffer from "chronic
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    low grade depression" or "posttraumatic stress disorder."
    However, due to her proclivity for under-reporting and denying
    symptoms, he was unable to make any such diagnoses.
    Carrie Lovette was qualified as an expert in clinical
    social work.   In November 2000, CDSS referred mother to Lovette
    for weekly sessions to help her "learn parenting skills and to
    help her learn how to provide a safe environment for her
    children."   Mother refused to acknowledge that she had anything
    to do with the children's removal or that her parenting skills
    were deficient, and she characterized the negative reports as
    "lies."    Mother attended thirteen sessions and missed ten and
    currently "refuses to return to therapy."   Her last session was
    on April 16, 2002.   Despite mother's strong feelings for her
    children, Lovette opined that mother lacks "any capacity for
    empathy for her children's experience and she, again, doesn't
    feel that there were any problems in her parenting behaviors
    skills before."   Mother's denials and refusals to accept help
    made it impossible for her to make any progress with therapy or
    to become a better parent.   Lovette indicated concerns with
    mother's "rage and impulse control and honesty."
    Robin Warner, a Child Protective Services (CPS) worker, was
    appointed to work with mother in April 2000 following Rashad's
    removal.   Warner advised the trial court that mother received
    CDSS services in 1992 "for a variety of concerns at that time,"
    such as mother's volatility and failure to provide appropriate
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    care.       Warner recalled a founded complaint for inadequate
    supervision in 1998 relating to an incident where Kierra and
    China received burns from a hot iron.        At the time, mother could
    not explain how the girls got burned, so CDSS "added more
    services" and "additional goals" to improve mother's parenting,
    "her money management, [and] the hygiene of the girls."        In
    January 1999, CDSS brought in "Children Youth and Family
    Services" in order to offer "intensive home services in
    [mother's] home in an effort to improve, really try to improve
    the environment for the children."         Warner recalled two founded
    allegations against mother in January and February of 1999.         The
    February 1999 incident involved the caretaker fleeing the
    residence and leaving China and Kierra alone after an occupant
    had been stabbed to death. 1
    Warner recalled an April 2000 home visit with CDSS worker
    Susan Brumfield during which China went into the kitchen,
    climbed the stove and was on the burners, which were turned off
    at the time.      Mother entered the kitchen, got her down and
    returned to Warner and Brumfield.      Mother did not warn China of
    the danger or admonish her not to repeat the conduct.        A short
    time later, China climbed onto the kitchen sink and turned on
    1
    Both Lovette and Dr. Aaron recalled mother describing this
    incident in which mother discovered a murdered victim in the
    home at which she and the children were living. Despite
    mother's denial that the event affected her, Dr. Aaron opined
    that such an event could have caused or exacerbated "her social
    withdrawal and strong mistrust of others."
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    the faucet.   Mother got her down and brought her into the living
    room, where China proceeded to throw an apple at Brumfield and
    hit Dashad "on the head a number of times."   Mother "took
    China's hand" while speaking with the CDSS workers, but she "did
    not discipline her."   When Warner warned mother about China's
    aggressiveness towards Dashad, mother sloughed it off as
    jealousy.    Warner related the many services provided to mother.
    A Family Preservation worker regularly visited and worked with
    mother in the home, a CASA worker was appointed and evaluations
    were done.    Warner recalled, "We were really trying to try
    whatever we could to improve the situation, so that the girls
    could remain in the home and the boys, at some point, could be
    brought back."   Despite "all of these services that we had put
    in, Ms. Hansberry continued to be resistant to the services."
    Mother either did not allow the family preservation worker into
    her residence or "she would be hostile" and not interact with
    the worker.   Moreover, mother "was missing appointments," and
    she "wasn't making her individual therapy appointments with Ms.
    Lovette."    Warner warned mother of the importance of cooperating
    with the service providers and wrote and provided to mother a
    list of things mother needed to do to keep the girls and get the
    twins back.   Despite mother's initial agreement to cooperate,
    "[t]here was no change" in her participation, and concerns about
    the two girls persisted, and CPS "continued to get reports"
    regarding "concerns" about the children.
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    Brumfield, a foster care social worker, began working with
    mother and her children in October 1999, six months before
    Rashad's removal.   At that time, there were already several
    service providers working with the mother, such as CHIP, CASA,
    CPS and Family Preservation Services.   Brumfield recalled CDSS's
    "continuing concerns of the children needing to [be]
    supervised."   After China and Kierra were placed in foster care,
    "People Places" became the therapeutic foster care agency
    contracted to work with mother and the girls.   Counseling also
    continued, however, mother "refused to be involved in those
    services."   Brumfield related how she and other CPS workers
    "tried to model appropriate parenting skills during visits with
    the children, so that [mother] could make use of those skills in
    the visits with the girls."
    Brumfield discussed the various foster care plans she
    prepared, copies of which the trial court admitted.    She
    explained that CDSS tried "to be very creative" with mother to
    try to get her to comply with the plans.    She would revise the
    plan and change strategies to accommodate mother.   To that end,
    she enlisted other facilitators to work with mother, such as a
    child consultant and a family consultant.
    Mother visited the boys thirty-three times and missed
    appointments twenty-one times.   At one point, Brumfield had to
    advise mother to provide advance notice or a doctor's excuse if
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    she was sick so the foster parents would not have to needlessly
    transport the boys to a designated location.
    Mother's "lack of progress with foster care plan[s],"
    caused CDSS to explore other options.   No relatives came
    forward, so adoption became the only alternative.
    The twins, who are now two years old, are "both
    developmentally delayed" and have "been identified [as
    requiring] early intervention services [as well as services]
    through the school system."   Brumfield testified that the twins
    are doing well in foster care, and the foster care family that
    has had custody since April 2000 is interested in adopting them.
    Both girls had behavorial and health problems before foster
    care placement.   They are presently "doing very well" and have
    "made a lot of progress with their foster family."   In addition
    to attending and benefiting from regular counseling and therapy
    sessions, "[t]hey've learned the basics of what it's like to
    have regular meals [and] a regular schedule.   They've learned
    proper nutrition, sleep.   Naps.   They've both done incredibly
    well in school, despite where they were when they came into
    care."
    Mother never completed a parenting class, nor did she stay
    in contact with her case worker and inform her as to employment
    or comply with the other requirements in the foster care service
    plans.   Mother reported "in late January or February" of 2002
    that she was living with her father in Garrett Square, but
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    Brumfield was not allowed access "to make an assessment."
    Brumfield averred that she revised and adjusted the foster care
    service plans in hopes of obtaining more participation and
    cooperation from mother.
    Stephanie Bass is a family consultant with the agency
    "People Places."   She was to "communicate and coordinate" the
    services and needs of all parties involved and monitor their
    progress.   China and Kierra were placed with Bass's agency at
    the end of February, 2001.   Barbara Gross was the initial family
    consultant, and Jason Holland was the child consultant.   Bass
    replaced Gross in August 2001, however Holland remained
    involved.   Mother was consistent in attending visits, however,
    mother was unable to safely and properly supervise the girls
    during visits.   Bass and other support staff tried to teach
    mother how to discipline and provide time outs through modeling,
    but mother was never able to do so independently.   Bass also
    recalled mother at times making inappropriate comments to the
    children.   Despite CDSS's efforts, mother still cannot "address
    discipline or safety issues."    Bass related that mother has
    changed her telephone number at least five times, making it
    difficult to reach her.
    Barba Merriwether is the CASA volunteer for the children.
    She made many visits and observations at mother's home, the
    foster parents' homes and during visitation between mother and
    her children and prepared several reports for the juvenile court
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    throughout the proceedings. 2    Merriwether noted mother's
    inability to perceive or admit any deficiencies in her parenting
    skills and documented several instances where mother failed to
    discipline and control China.
    In a May 2001 report, Merriwether opined "that a permanent
    home is in the best interest for the boys," who are thriving in
    the foster home.   In her June 22, 2001 report, Merriwether
    provided the following summary and recommendation regarding the
    twins:
    In working with Mrs. Hansberry for more
    than a year, she has not demonstrated that
    she is capable or willing to maintain a safe
    and nurturing home for her twin boys. Ms.
    Hansberry does not seem to appreciate the
    necessity that permanent, long term changes
    must take place. I do not believe she fully
    understands and comprehends the
    responsibility of caring for a child of any
    age.
    It is my opinion that an adoptive home
    is in the best interests for the boys.
    The girls are doing very well in foster care also.
    Merriwether reported that the foster parents have provided
    structure and discipline, and both girls showed much progress
    socially and academically.      They appeared well-behaved and
    happy.
    2
    Three reports, dated June 23, 2000, May 7, 2001, and June
    22, 2001, related to the twins, Rashad and Dashad. Two reports
    dated November 7, 2001 and May 10, 2002, related to the girls,
    China and Kierra.
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    Merriwether experienced difficulty contacting mother or
    visiting with her to discuss the case.    Merriwether reported in
    May 2002 that mother "is still unemployed."    Merriwether noted
    that mother still "does not seem to appreciate or understand"
    what she must do, and she "has exhibited little ability or
    willingness to improve the situation."    Thus, Merriwether
    recommended adoption.
    In closing argument, the guardian ad litem advised the
    trial court that she has been guardian for these children for
    "almost four years." 3   The guardian felt that mother "has done
    her best," however, her "hostility to . . . social services" and
    lack of cooperation prevented her from ameliorating the
    conditions that led to the removals.    Thus, the guardian "cannot
    recommend that [the children] be returned to her."
    In deciding to terminate mother's parental rights, the
    trial court made the following findings:
    It's quite clear to the Court that a plan
    was designed for the mother to correct the
    situations. And she was instructed on the
    plans. And in following the instructions,
    in a [span] of over a year, probably about
    two years, that she was not able to comply
    with the requirements of the plan. And, at
    the present time, she has no visible means
    of support, has no job, really has not
    indicated how she would take care of these
    children, four of them, and has offered no
    plan to the Court to show how she could do
    this in the future. I feel it's in the best
    3
    On appeal, the guardian ad litem did not file a brief on
    behalf of the children in this case.
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    interests of the children that they not be
    returned to her.
    By order dated December 11, 2002, the trial court
    terminated mother's residual parental rights.
    ANALYSIS
    On appeal, we will not disturb a trial court's findings
    unless they are plainly wrong or without evidentiary support.
    See Roanoke City Dep't of Soc. Servs. v. Heide, 
    35 Va. App. 328
    ,
    336, 
    544 S.E.2d 890
    , 894 (2001).
    In closing argument at the July 26, 2002 de novo hearing,
    mother's attorney stated:   "What needs to be shown here is
    whether or not [mother] has been able to remedy the conditions
    which led to these children coming into care in the first
    place."   Continuing, mother's attorney argued:
    And she submits that either there was
    nothing to remedy in the first place or that
    she has done so, but she's able to take care
    of these kids.
    As to the girls, mother's attorney questioned the basis of
    removal as stated in the petition of
    July of 2000, relating to serious concerns
    about the safety and well-being of Kierra
    and her sister. That's what led to these
    girls coming into care.
    And realistically, I think what –
    [mother] wants all four of the kids back,
    but I think her position is stronger with
    regard to the two girls. I think she can
    take care of those two girls. There's a
    question about them being removed in the
    first place. That is her position. With
    regard to the twins, the youngest, those are
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    her children. Again, the removals arose out
    of an injury suffered by Rashad. We can't
    dispute that. It's reflected in the medical
    records. But it's ideology [sic] where it
    came from. It clearly remains unknown. And
    [mother] doesn't believe that it was
    occasion to anything [sic] due to her
    neglect or lack of care for the children.
    Similarly, Dashad, we think in purview [sic]
    is just a reaction. Social services had
    previously removed two of her kids already.
    And they were primed, locked and ready to go
    essentially for just about any reason to
    take these children.
    On December 11, 2002, the trial court entered final orders
    in the four cases heard and argued on July 26, 2002.   Mother's
    attorney endorsed each order, "Seen Objected To."
    In her opening brief, mother contends the
    evidentiary record plainly shows that CDSS
    failed to make reasonable and appropriate
    efforts to provide medical, mental health or
    other rehabilitative services and support to
    the end that Ms. Hansberry could make
    additional substantial progress towards
    eliminating the Conditions. Such efforts
    are a condition precedent to the trial
    court's terminating [mother's] residual
    parental rights. [Mother] contends that
    [she] remedied substantially the Conditions
    and made substantial progress towards
    eliminating such Conditions. However, to
    the extent [mother] was unable to make more
    substantial progress, [mother] has good
    cause due to CDSS's failure to make
    reasonable and appropriate efforts to
    provide such services.
    Mother never argued to the trial court that CDSS failed to
    make reasonable or appropriate efforts, nor did she contend
    below that there was good cause for her failure to follow
    through or respond to CDSS's rehabilitative efforts.
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    "[E]ndorsing a[n order] 'seen and objected to' does not
    preserve an issue for appeal unless the record further reveals
    that the issue was properly raised for consideration by the
    trial court."   Konefal v. Konefal, 
    18 Va. App. 612
    , 615, 
    446 S.E.2d 153
    , 155 (1994).   "No ruling of the trial court . . .
    will be considered as a basis for reversal unless the objection
    was stated together with the grounds therefor at the time of the
    ruling, except for good cause shown or to enable the Court of
    Appeals to attain the ends of justice."   Rule 5A:18.
    Because mother filed no post-judgment pleadings raising the
    good cause defense, we are precluded from addressing that
    argument on appeal.   See Rule 5A:18.   Moreover, because the
    record contains abundant evidence to support the trial court's
    finding that CDSS made reasonable and appropriate efforts to
    provide services and because the record fails to contain
    sufficient, credible evidence establishing good cause for
    mother's failure to respond or follow through with those
    services, the record does not reflect any reason to invoke the
    good cause or ends of justice exceptions to Rule 5A:18.
    Therefore, the only issues argued and preserved by mother
    were those raised in her closing argument, namely, (1) there was
    insufficient evidence of harm or danger to remove the children
    in the first place; (2) there was nothing for mother to remedy;
    and/or (3) mother has remedied any such conditions and can now
    care for the children.    The only issue raised at trial and
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    argued in mother's brief is whether there was sufficient
    evidence that mother failed to follow through with services and
    remedy the situation requiring removal.   Thus, we limit our
    analysis to that issue.
    Rashad and Dashad
    The trial court terminated mother's parental rights to
    Rashad and Dashad pursuant to Code § 16.1-283(B), which provides
    in pertinent part:
    The residual parental rights of a parent or
    parents of a child found by the court to be
    neglected or abused and placed in foster
    care as a result of (i) court commitment
    . . . may be terminated if the court finds,
    based upon clear and convincing evidence,
    that it is in the best interests of the
    child 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, mental
    health or other rehabilitative agencies
    prior to the child's initial placement in
    foster care.
    Viewed in the light most favorable to CDSS, clear and
    convincing evidence proved that:   (1) the twins "were found by
    the court to be neglected or abused" and were placed into foster
    - 20 -
    care pursuant to court commitment, Code § 16.1-283(B); (2) CDSS
    had, prior to the twins' placement in foster care, made efforts
    to rehabilitate mother, Code § 16.1-283(B)(2); (3) termination
    "is in the best interests of the child," Code § 16.1-283(B); (4)
    the "neglect or abuse suffered by such child presented a serious
    and substantial threat to his life, health or development," Code
    § 16.1-283(B)(1); and (5) "[i]t 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 safe
    return to his parent or parents within a reasonable period of
    time," Code § 16.1-283(B)(2).    That mother "without good cause,
    ha[d] 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 reduce, eliminate or prevent the neglect or abuse of
    the child," constituted prima facie evidence "of the conditions
    set forth in subdivision B 2."    Code § 16.1-283(B)(2)(c).   At
    the time of trial, the twins had been in foster care over two
    years.   Not only was there a lack of evidence that mother
    substantially corrected or eliminated the conditions leading to
    foster care, but CDSS presented evidence that mother refused to
    acknowledge any deficiencies existed and appeared to thwart
    CDSS's attempts to provide services to remediate her parenting
    and supervisory skills.
    - 21 -
    CDSS presented sufficient clear and convincing evidence to
    support the trial court's findings and rulings.       Moreover,
    mother did not rebut the prima facie case established by CDSS.
    Therefore, the evidentiary requirements of Code § 16.1-283(B)(2)
    had been met, and the trial court's findings and judgment were
    not plainly wrong or without evidence to support them.
    China and Kierra
    The trial court terminated mother's parental rights to
    China and Kierra pursuant to Code § 16.1-283(C), which provides
    in pertinent part:
    The residual parental rights of a parent or
    parents of a child placed in foster care as
    a result of court commitment, . . . may be
    terminated if the court finds, based upon
    clear and convincing evidence, that it is in
    the best interests of the child and that:
    *        *    *      *      *         *        *
    2. The 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. Proof
    that the parent or parents, without good
    cause, have failed or been unable to make
    substantial progress towards elimination of
    the conditions which led to or required
    continuation of the child's foster care
    placement in accordance with their
    obligations under and within the time limits
    or goals set forth in a foster care plan
    filed with the court or any other plan
    - 22 -
    jointly designed and agreed to by the parent
    or parents and a public or private social,
    medical, mental health or other
    rehabilitative agency shall constitute prima
    facie evidence of this condition. 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.
    The evidence, viewed in the light most favorable to CDSS,
    proved by clear and convincing evidence both (1) that CDSS made
    "reasonable and appropriate efforts" to help mother remedy the
    conditions "which led to or required continuation of the [China
    and Kierra's] foster care placement" and (2) that mother,
    "without good cause" was "unwilling or unable within a
    reasonable period of time not to exceed twelve months" from the
    date of placement in foster care failed "to substantially
    remedy" those conditions.   Code § 16.1-283(C)(2).   In reaching
    this conclusion, the trial court took "into consideration the
    prior efforts" of CDSS "to rehabilitate" mother.     Id.
    Pursuant to Code § 16.1-283(C)(2), CDSS presented prima
    facie evidence that mother "without good cause, ha[s] failed or
    been unable to make substantial progress towards elimination of
    the conditions which led to or required continuation of [China
    and Kierra's] foster care placement in accordance with [he]r
    obligations under and within the time limits or goals set forth
    in [the] foster care plan[s] filed with the court."        Id.
    Moreover, mother did not rebut that prima facie evidence.
    Therefore, the evidentiary requirements of Code § 16.1-283(C)(2)
    - 23 -
    had been met, and the trial court's findings and judgment were
    not plainly wrong or without evidence to support them.
    Accordingly, the decisions of the trial court are summarily
    affirmed.
    Affirmed.
    - 24 -
    

Document Info

Docket Number: 0118032

Filed Date: 6/17/2003

Precedential Status: Non-Precedential

Modified Date: 4/18/2021