Opinion
Record No. 0156-93-3
Decided: July 19, 1994
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY, J. Michael Gamble, Judge
Affirmed.
William E. Green (Baker, Williams Green, on briefs), for appellant.
David W. Shreve, Campbell County Attorney, for appellee.
Present: Judges Benton, Koontz, and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Elaine Winston Wright and Daniel Sonny Wright, her husband, each appeal the judgments of the circuit court judge terminating their residual parental rights to their two oldest sons. This opinion addresses the mother's challenge to the judgment. She contends the trial judge erred in ruling that: (1) the Campbell County Department of Social Services established a prima facie case for the termination of parental rights as required by Code Sec. 16.2-283; (2) the Department proved the failure of services designed to remedy the conditions which resulted in the children being placed in foster care; (3) she did not rebut the allegation that she failed to remedy the conditions resulting in her children being placed in foster care; and (4) she was notentitled to an updated psychological evaluation. We affirm the judgment.
I.
The evidence proved that the mother married Carlton Wayne Harris in 1980 when she was age seventeen. Two years later, they had a child. At the age of three months, the child was admitted to a hospital with three broken ribs, a broken arm, a broken leg, and compression fractures of two vertebrae. The child was also diagnosed as failing to thrive. In response to this incident, the Department intervened and offered the mother extensive remedial services. These services were unsuccessful in effecting significant changes. In 1985, the mother voluntarily terminated her residual parental rights to the child. The termination is not at issue on this appeal.
In 1985, mother gave birth to a second child. That child's father is Daniel Sonny Wright, who was not then married to the mother. The record does not establish when the mother and Carlton Wayne Harris were divorced. However, neither the mother nor Wright disputed that Wright is the father of the mother's second child. In December 1985, this child suffered severe scald burns. The mother was convicted of assault and battery in connection with the child's burns, but she denied that she intentionally harmed her son.
Since 1985, the Department and Lutheran Family Services have both attempted to provide the mother and father with services intended to improve their ability to function as appropriate parents. The services have included classes in parenting skills, financial management instruction, financial assistance, vocational education, and counseling. When these services did not produce results, the Department began proceedings to terminate the parental rights of the mother and father.
Kitty Waltemyer, a Department social worker who once was in charge of the case, testified at a hearing in 1987 that the Department had provided the full range of available services to the mother and the father. She also testified that the Department could do nothing more to help reunite the child with his parents because of both parents' refusal to cooperate with remedial programs such as counseling, employment efforts, one-on-one planning, and work with mental health counselors. The Department obtained custody of this child and successfully petitioned the court to terminate the residual parental rights of the mother and the father. The lawfulness of that termination is not at issue on this appeal.
In March 1988, the mother gave birth to a third child. One week later the mother and the father married. They do not dispute that he is the father of this child. The Department obtained custody of this child at birth and placed him in a foster home. In August 1988, the Department petitioned for the termination of the mother's and the father's parental rights regarding this child. The circuit court judge dismissed the petition, ruling that the Department had failed "legally and factually to carry its required burden" under Code Sec. 16.1-281. This Court in an unpublished opinion, Campbell County Dep't of Social Servs. v. Wright, Record No. 1448-89-3 (Va.App. July 24, 1990), affirmed the dismissal on the ground that the Department failed to file a foster care plan in a timely manner as required by Code Sec. 16.1-281.
In 1989, the mother and father had another son, her fourth child. The Department also obtained custody of this child at birth and placed him in a foster home.
At a hearing in 1989, Anne Vance, another Department social worker, testified that the mother and father failed to participate in various programs that the Department offered them, including family therapy. She testified that the mother complained that the father abused alcohol, that he had an extramarital relationship with another woman, that he remained unemployed, that he sold food stamps to buy cigarettes, that he contributed to the difficulty of keeping food in their home, and that he physically abused her. Vance also testified that because of the Department's lack of success with the parents, the programs were discontinued. She said no steps were taken by the Department in the previous twelve months to reunite either the mother or the father with either of the last born sons. She opined that the mother was incapable of following through with the offered services.
On April 5, 1991, the Department petitioned for the termination of the mother's and the father's parental rights to the sons who were born in 1988 and 1989, respectively. At the evidentiary hearing, Dr. Doyle Gentry, a licensed clinical psychologist, testified that he met with the mother for approximately two hours in 1987. Based on his session with the mother in 1987, Dr. Gentry testified that in 1987 the mother had an I.Q. of 73 and had a borderline personality disorder that made it difficult for her to maintain consistent, healthy, and stable interpersonal relationships. Dr. Gentry also noted that the mother's personality was indicative of a "high probability of an individual storing up a great deal of anger and resentment and letting it all out in episodic, very dramatic ways," and that such a personality was in Dr. Gentry's experience, "typical of someone who would abuse a young child."
Dr. Gentry testified that the mother's prognosis for change in a manner suitable for parenting was poor, especially in light of the mother's history as an abused child herself. Dr. Gentry conceded that a highly motivated person might overcome a personality disorder like the mother's, but he noted that the mother's poor record of participation in counseling and inclination to blame others for her problems indicated to him that the mother was not such a highly motivated person. Dr. Gentry also testified that personality traits are not likely to change over the course of a person's lifetime, and that he would expect the mother's traits to remain the same as they were in 1987. The trial judge denied the mother's motion for an updated psychological evaluation.
Mary Fabrizio, another Department social worker involved in this case, testified that the services offered the mother and the father included transportation services, parenting classes, and mental health counseling. Fabrizio testified that the services had been unsuccessful. She also testified that the parents received in-home services through Family Services. She said that the mother and the father did not participate in counseling or parenting classes outside of those offered by Family Services. Fabrizio testified that the mother has never been accused of abusing any child other than her first two and that the father has never been accused of abusing any of his children.
In 1990, the mother and the father moved from Campbell County to Halifax County. This home was in substandard condition; it lacked running water and electricity. The home now has water by way of a hose running from a nearby well into the kitchen. Family Services paid for electricity to be connected. An unprotected wood stove in the center of the home now provides heat.
The mother and the father continue to be financially dependent. The family's only source of income is the mother's Social Security benefits. Neither the mother nor the father has had success keeping a job. In February 1991, the father was ordered to pay $57.50 per week in child support. An employee of the Division of Child Support Enforcement testified that the father never paid the support.
Patricia Ronk, a Family Services social worker who had counseled both parents, wrote in her concluding summary of January 1990 that:
[Mother] has demonstrated her willingness to cooperate with our services and [father] has demonstrated his unwillingness to cooperate with our services. It is our opinion that [mother] has the capability of being an appropriate parent but lacks the support she needs from [father].
The evidence also proved that the mother was entitled to unsupervised visitation with one of the sons and supervised visitation with the other. The mother testified, however, that she was concerned that unsupervised visitation with one son would make the other son feel left out, so she ceased visiting. Fabrizio testified that one boy had grown to so hate visitation with the mother and the father that he would cling to furniture to avoid going. Fabrizio testified that she no longer had the heart to force him to visit with the mother and the father. Fabrizio also testified that the father was not present during many of the visits, and that she was concerned that he was not participating in the family unit.
The evidence also proved that in 1992 the mother and the father had another child, a daughter. The record indicates that although the Halifax Department of Social Services was aware of the mother's and the father's parenting history, it had not intervened in their care or custody of their infant daughter.
The trial judge granted the Department's petition to terminate both the father's and the mother's parental rights to both sons. The trial judge found that the parenting skill deficiencies and personality disorder of the mother had not been and were unlikely to be remedied. The trial judge found that the father was "at best a disinterested disconnected parent [who] has no interest, desire, or aptitude for progressing toward an elimination of the conditions which caused the foster care placement."
II.
The mother's first challenge is that the Department failed to carry its burden of proving a prima facie case that her parental rights should be terminated. Code Sec. 16.1-283.
Under familiar principles, we review the evidence in the light most favorable to the party prevailing below. Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986). The record reveals that the mother's first two children suffered severe injuries in their infancies, including broken bones and severe scald burns. The record also reveals that the mother's third and fourth children were removed from the mother after birth and were placed in foster care because of their parents' inability to provide a safe and secure environment in which to live.
The plan that the Department submitted to the trial court in 1988 stated that three services would be provided to the mother and the father: (1) opportunity for involvement with the child as ordered by the court; (2) information regarding the child's health and well-being; and (3) structural family therapy. The plan also stated that the mother and the father were responsible for participating in the future planning for the child, maintaining interest in the child, and requesting visitation with the child. Indeed, the Department had been providing services to the mother since 1985 in order to help her provide a safe and secure environment for her children. These services included parenting skills classes, financial management instruction, financial assistance, vocational education, and counseling.
Although the mother complained of the father's physical abuse, infidelity, alcohol abuse, and his squandering of food stamps to buy cigarettes, neither she nor the father presented proof that they had remedied those problems. Fabrizio testified that, with the exception of services provided by Family Services, the mother did not participate in counseling or parenting classes. Fabrizio concluded that the services offered to the mother had been unsuccessful. Moreover, Dr. Gentry testified that the mother's personality disorder was such that she was "typical of someone who would abuse a young child," and that she was likely to have difficulty maintaining consistent, healthy, and stable relationships. See Lowe v. Department of Pub. Welfare, 231 Va. 277, 282, 343 S.E.2d 70, 73 (1986) (parent's mental illness may be basis for termination of parental rights).
The mother argues that the social worker's concession that the Department ceased providing services to reunite the parents with either of the children proves that the Department failed to provide reasonable and appropriate services as required by Code Sec. 16.1-283(C) (2). We disagree. The Department was required to provide services designed to "remedy substantially the conditions which led to the child's foster care placement." Id. The evidence proved that over a long period of time the Department attempted without success to offer those services. Any attempt to reunite the mother with the children before the parents proved they could provide a safe and secure environment in which the children could live would have been inconsistent with the foster care plan and may have been dangerous to the well-being of the children.
The mother has not had success in keeping a job and has relied upon social security income. She is currently living in inadequate conditions. Although poverty is not, by itself, grounds for termination of parental rights, the mother's efforts, after seven years, toward providing a safe home for her children, cannot be fairly characterized as substantial. We conclude that the Department proved by clear and convincing evidence its prima facie case that the mother, without good cause, failed to make substantial progress toward providing a safe and secure environment for the children.
III.
The mother also argues that the trial judge erred in giving undue weight to her failure to satisfy the Department's plan offered in conjunction with the first two children. We disagree.
"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 considering the children's best interests, the trial judge should not ignore admissible evidence of parental unfitness. See Helen W. v. Fairfax County Dep't of Human Dev., 12 Va. App. 877, 885, 407 S.E.2d 25, 30 (1991); Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795-96 (1990). We hold that the trial judge could permissibly consider the results of any services offered to the mother in order to help her provide a safe home for her children. The trial judge was not required to limit his consideration to just those services offered to the mother after the births of the third and fourth children.
"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 his responsibilities." Kaywood v. Halifax County Dep't of Social Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990). Dr. Gentry testified that the mother's personality disorder made her typical of a person who might abuse children and that only a highly motivated person might successfully combat that disorder. Moreover, evidence established that the mother did not fully participate in the counseling and parenting skills services the Department offered and that the services the mother accepted were unsuccessful. The record proved that the mother has been offered services since 1982. She has an uninterrupted record of only partial participation in those services. Accordingly, we conclude the trial judge did not err in considering the mother's past lack of success toward taking steps to provide a safe and secure home for her children.
IV.
The mother's third challenge is that she offered sufficient evidence to rebut the Department's prima facie case. She notes that to the extent that she was able, she made improvements to her home, that she participated in visitation with her children, and that Ronk's report stated that she had the ability to be an appropriate parent.
The record reveals, however, that the mother's visitation with her children has not been a uniformly positive experience and that she ceased unsupervised visitation with the third child. Although the mother testified that she had stopped the unsupervised visitation because of her concern of the effect it would have on the fourth child, Fabrizio testified that the visitations were strained and the children physically resisted visitation with the mother. Although Ronk stated in her report that the mother was capable of being an appropriate parent, that evidence was in conflict with Fabrizio's testimony regarding mother's participation in the Department's services and with Dr. Gentry's testimony regarding mother's personality disorder. The trial judge was entitled to give greater weight to Fabrizio's and Dr. Gentry's testimony. See Goodyear Tire Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987).
The mother asserts that she presently has custody of an infant daughter, her fifth child, and that the Halifax Department of Social Services has not intervened in her care of that child. The mother argues that the trial judge erred in refusing to infer from this fact that the mother is an appropriate parent. No evidence was adduced at trial, however, regarding the infant's care nor was any evidence adduced from the Halifax Department concerning its visitations or position.
The mother's personality disorder and sporadic participation in the Department's services proved a prima facie case that her residual parental rights should be terminated. The inactivity of the Halifax Department is insufficient, either alone or coupled with Ronk's report, to rebut the Department's prima facie case. See Richardson v. Henry County Dep't of Social Servs., 223 Va. 670, 677, 292 S.E.2d 342, 346 (1982) (partial efforts to regain custody of children not necessarily sufficient to rebut prima facie case that residual rights should be terminated).
V.
The mother's final challenge is to the trial judge's refusal to appoint an independent psychologist to perform an updated psychological examination. The mother argues that evidence of her improved pattern of behavior justified an updated examination. While such an evaluation would have been helpful, Dr. Gentry's testimony was sufficient to prove that the mother's personality disorder had not been remedied.
Dr. Gentry testified that the mother's personality disorder was such that it was unlikely to change with time. He further testified that the mother's ability to exhibit appropriate behavior for short periods of time when under close scrutiny of Family Services and the Department did not negate the problems that arise from her personality disorder. He testified that the mother remained at risk of engaging in episodic violent eruptions because of her personality disorder.
Upon the evidence, the trial judge cannot be said to have speculated regarding the ongoing nature of the mother's disorder. We conclude that the trial judge did not err in refusing to appoint an independent psychologist to provide an updated evaluation of the mother.
For the foregoing reasons, the judgment of the circuit court is affirmed.
Affirmed.