Dawn Branch v. Petersburg Department of Social Services ( 2008 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Haley, Millette and Senior Judge Coleman
DAWN BRANCH
MEMORANDUM OPINION *
v. Record No. 2120-07-2 PER CURIAM
FEBRUARY 12, 2008
PETERSBURG DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Pamela S. Baskervill, Judge
(John G. LaFratta, on brief), for appellant.
(Joan M. O’Donnell; J. Wicker Traylor, Guardian ad litem for the
infant child, on brief), for appellee.
Dawn Branch (hereinafter “mother”) contends the trial court erred in terminating her
parental rights to her minor child, K.L. Mother argues the trial court erred by finding the
evidence sufficient to terminate her parental rights and to approve the goal of adoption. For the
reasons stated herein, we summarily affirm the trial court’s decision. Rule 5A:27.
Background
We view the evidence 1 in the light most favorable to the prevailing party below and grant
to it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax County Dep’t of
Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
The facts are drawn from the Statement of Facts filed with the trial court in lieu of a
transcript pursuant to Rule 5A:8. The parties stipulated to the evidence offered by the Petersburg
Department of Social Services (“PDSS”) in its case-in-chief, and mother conceded the evidence
was sufficient to make out a prima facie case warranting termination of her parental rights.
K.L. was born on October 25, 2006. Because she was born prematurely, she weighed
only one pound and required intensive medical support, including frequent feedings and an apnea
monitor. K.L. remained in the hospital until February 20, 2007. She continued to require an
apnea monitor upon her discharge and remained on the monitor at the time of the termination
hearing on August 6, 2007.
Shortly before K.L.’s release from the hospital, PDSS received a report that mother was
unable to administer the child’s medication properly even though it had been “color-coded.”
Mother could not operate the apnea monitor and, on one occasion, had failed to recognize K.L.
was in respiratory distress.
K.L. was placed in foster care pursuant to an emergency removal order on February 20,
2007. A few weeks later, the juvenile and domestic relations district court ruled that K.L. was an
abused child and approved the goal of adoption. Mother appealed to the circuit court.
Much of the evidence presented by PDSS at the termination hearing related to mother’s
parenting history with K.L.’s older sibling, D.L. Mother’s parental rights to D.L. were
terminated in 2006. Like K.L., the older child was born prematurely and required support such
as frequent feedings and use of an apnea monitor. D.L. remained in the hospital nearly three
months after her birth. Prior to her discharge, hospital staff provided mother with intensive
training to care for the older child, including proper use of the apnea monitor.
While D.L. was in the hospital, mother failed to respond to the alarm of the apnea
monitor on at least two occasions and appeared incapable of caring for the older child on a daily
basis. PDSS met with mother to determine her ability to care for the older child and requested a
psychological evaluation to determine what services, if any, were available to assist or enhance
mother’s ability to care for D.L.
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The psychological evaluation was completed on July 20, 2005 by Dr. Greg Wolber.
Mother’s overall scores on intelligence tests administered by Dr. Wolber bordered on mental
retardation and revealed her incapable of performing simple multiplication and division
computations. Dr. Wolber concluded mother would “likely have difficulty with more complex
aspects of daily living, i.e., handling a budget, planning meals and shopping for groceries,
providing the correct medication, mixing formula, etc.” Dr. Wolber acknowledged she would
likely be able to perform “some of these tasks” with supervision. If mother were to retain
custody of her child, Dr. Wolber recommended an “intense level of supervision not only to train
her in appropriate childcare but also to continue to monitor and assess her ability to parent.”
In addition to training at the hospital and parenting classes, PDSS employee Gail
Davis-Lee provided in-home supervised visitation and individual parenting instruction upon
D.L.’s release from the hospital in August 2005. Davis-Lee provided this instruction to mother
twice a week for fourteen months, but observed little improvement in mother’s parenting skills.
Based upon her observations, Davis-Lee did not believe the older child could be left safely in
mother’s sole care.
On or about October 4, 2006, mother’s parental rights to the older child were terminated
pursuant to Code § 16.1-283(C)(2). The juvenile court found that mother suffered from a
“combination of intellectual, cognitive, and psychiatric difficulties” which required the older
child’s continued placement in foster care and which available rehabilitative services could not
eliminate.
Mother countered the evidence regarding her capacity to parent K.L. with expert
testimony from Dr. Penny L. Sprecher. Dr. Sprecher testified that mother was not mentally
retarded and was able to function at the level of an eighteen year old. However, Dr. Sprecher’s
report indicates that mother’s scores on the intelligence tests administered to her “resulted in
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Verbal, Performance and Full Scale scores within the [m]ild range of Mental Retardation.”
Dr. Sprecher, whose report attributes mother’s poor test scores to anxiety, concludes that mother
“is probably functioning in the [b]orderline range of intelligence.”
While Dr. Sprecher’s report concluded that mother was “capable of caring for her self
[sic] and . . . her young children,” she admitted at the termination hearing her conclusions were
based upon information provided by mother and her friend, Vicki Parham. Dr. Sprecher also
acknowledged she had no information about the medical needs of mother’s child and that she
had not visited mother’s home or observed mother caring for any children.
Vicki Parham testified that she visited mother four or five days each week and assisted
her with her finances. Parham was the payee on the mother’s disability checks and paid
mother’s rent and utilities bills with those funds. She stated that she transported mother to visit
K.L. in the hospital several times and was willing to assist mother in caring for K.L. Parham
admitted, however, she had applied for financial aid for K.L. after the child was placed in foster
care, and produced three checks which were confiscated by the trial court.
Mother testified she was capable of caring for K.L. and knew how to use the apnea
monitor from instruction she had received at the hospital. She indicated she had been employed
at a fast-food restaurant, but had left that job to care for her children.
In addition to the evidence stipulated in its case-in-chief, PDSS proffered testimony from
Davis-Lee that K.L. had been placed in the same foster home where her sister resided, and PDSS
had no plans to move her. PDSS proffered through Davis-Lee that K.L. was happy and
well-adjusted, but had medical needs which were more serious and required more intensive care
than those of her older sister.
The trial court concluded that “[b]oth children were placed in foster care due to the
mother’s inability to comprehend their needs and to follow instructions for their care.” This
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instruction included “training at MCV Hospital and Chippenham Hospital, parenting classes,
individual parenting instruction and a psychological evaluation to determine her level of
functioning.” The trial court noted that “mother d[id] not maintain employment or independent
housing,” and relied on social security income for disability. Finally, the trial court found that
“mother ha[d] a combination of intellectual, cognitive and psychiatric difficulties which
require[d] the child’s continued placement in foster care and which available rehabilitative
services [could] not eliminate.”
The trial court’s order found that termination was warranted under subsections (B)(2)(a),
(C)(2), and (E) of Code § 16.1-283. This appeal followed.
Analysis
“Code § 16.1-283 embodies ‘the statutory scheme for the . . . termination of residual
parental rights in this Commonwealth’ [which] . . . ‘provides detailed procedures designed to
protect the rights of the parents and their child,’ balancing their interests while seeking to
preserve the family.” Lecky v. Reed, 20 Va. App. 306, 311, 456 S.E.2d 538, 540 (1995)
(citations omitted). The trial judge’s findings, “‘when based on evidence heard ore tenus, will
not be disturbed on appeal unless plainly wrong or without evidence to support it.’” Logan, 13
Va. App. at 128, 409 S.E.2d at 463 (quoting Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d
232, 237 (1988)).
When considering termination of a parent’s residual rights to a child, “the paramount
consideration of a trial court is the child’s best interests.” Id. “‘[T]ermination 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 Pub.
Welfare of the City of Richmond, 231 Va. 272, 280, 343 S.E.2d 70, 72 (1986)). On review, “[a]
trial court is presumed to have thoroughly weighed all the evidence, considered the statutory
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requirements, and made its determination based on the child’s best interests.” Farley v. Farley, 9
Va. App. 326, 329, 387 S.E.2d 794, 795 (1990).
Code § 16.1-283 provides for the termination of residual parental rights under carefully
defined circumstances. Here, the trial court concluded that the evidence warranted termination
of mother’s residual parental rights to K.L. on three alternative grounds. Without specifically
referring to any of these sections, mother argues the trial court erred in terminating her parental
rights because the evidence did not support its finding that she had mental limitations which
could not be overcome. Specifically, mother contends the trial court erred by rejecting her
expert’s testimony that she was capable of parenting K.L.
We need not address whether the trial court erred in deciding termination was warranted
under subsection (B)(2)(a), i.e., that mother’s mental condition rendered her incapable of
providing the necessary care to K.L, because the record supports the trial court’s decision on
subsection (E) grounds. Where a trial court’s judgment is made on alternative grounds, we need
only consider whether any one of the alternatives is sufficient to sustain the judgment of the trial
court and, if we so find, need not address the other grounds. See Boone v. C. Arthur Weaver
Co., 235 Va. 157, 161, 365 S.E.2d 764, 766 (1988).
Subsection (E) of Code § 16.1-283 provides as follows:
The residual parental rights of a parent or parents of a child who is
in the custody of a local board or licensed child-placing agency
may be terminated by the court if the court finds, based upon clear
and convincing evidence, that it is in the best interests of the child
and that (i) the residual parental rights of the parent regarding a
sibling of the child have previously been involuntarily
terminated . . . .
The evidence is undisputed that mother’s parental rights to her older child were
terminated in October 2006. However, mother maintains the evidence did not support the trial
court’s finding that termination was in K.L.’s best interests. We disagree.
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Despite extensive training and prior experience with her first child, mother demonstrated
an inability to operate K.L.’s apnea monitor and administer her medications properly. Through
Davis-Lee, PDSS established that fourteen months of individual training had little effect on
mother’s ability to address her first child’s needs. Davis-Lee’s observations were corroborated
by mother’s subsequent failure to recognize that K.L. was in respiratory distress and by her
inability to administer her child’s medications properly. K.L., who has more demanding medical
needs than those of the sister with whom she is placed, is “happy and well-adjusted in her
placement.”
The record contains credible evidence to support the trial court’s finding that termination
is in the best interests of K.L. and that the requirements of Code § 16.1-283(E) 2 have been
proven. Accordingly, we summarily affirm the decision of the trial court. See Rule 5A:27.
Affirmed.
2
As subsection (E) does not impose an obligation on PDSS to provide services, we also
reject mother’s argument that PDSS failed to fulfill its obligation to provide all reasonable,
appropriate, and available services to perpetuate the parent-child relationship.
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