Linda L. Donley v Arlington Dept. of Human Service

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Elder and Fitzpatrick
MARK U. PRICE
v. 	Record No. 0035-95-4 	MEMORANDUM OPINION*
PER CURIAM
ARLINGTON DEPARTMENT OF HUMAN SERVICES 	DECEMBER 19, 1995
AND
LINDA L. DONLEY
v. 	Record No. 0065-95-4
ARLINGTON DEPARTMENT OF HUMAN SERVICES
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
(Mark Urry Price, pro se, on briefs).
(Linda L. Donley, pro se, on briefs).
(Mary E. Craig, Assistant County Attorney,
on brief), for appellee.
Mark U. Price and Linda L. Donley appeal the decision of the
circuit court terminating their parental rights to their two
daughters, Lynda Elizabeth ("Ellie") and Sara Vanessa. 	Upon
reviewing the record and briefs of the parties, we conclude that
these appeals are without merit. 	Accordingly, we summarily
affirm the decision of the trial court. 	Rule 5A:27.
"When addressing matters concerning a child, including the
termination of a parent's residual parental rights, the paramount
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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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). 	The trial courts "'are vested
with broad discretion in making the decisions necessary to guard
and to foster a child's best interests.'" 	Id. (citation
omitted). 	On appeal, when the trial court has heard the evidence
ore tenus, its judgment will not be disturbed unless plainly
wrong or without evidence to support it. 	Id.
Under Code § 16.1-283(B), the Department of Human Services
(DHS) must establish by clear and convincing evidence that (1)
the neglect and abuse suffered by Ellie and Sara "presented a
serious and substantial threat to [their] life, health or
development;" and (2) that it is not "reasonably likely" that the
conditions which caused the neglect and abuse can be
"substantially corrected or eliminated" to allow the children to
return to either parent in a "reasonable period of time." 	Code
§ 16.1-283(B)(1) and (2). 	Proof that the parents suffer from a
severe mental or emotional illness which creates "no reasonable
expectation" that the parent will be able to "undertake
responsibility for the care needed by the child" is prima facie
evidence that the abusive or neglectful conditions have not been
corrected. 	Code § 16.1-283(B)(2)(a). 	Similarly, proof that the
parents have not responded to or followed through on appropriate
rehabilitative efforts and services offered through DHS or other
agencies is prima facie evidence that the abusive or neglectful

3
conditions have not been corrected. 	Code § 16.1-283(B)(2)(c).
Donley and Price voluntarily entrusted Ellie and Sara to DHS
in 1989. 	At that time, Ellie was two years old and Sara was ten
months. 	Both girls were developmentally delayed. 	When Ellie
entered foster care, she was extremely passive with a limited
vocabulary and a reluctance to interact. 	Ellie's play themes
revolved around being hurt and needing protection. 	Ellie would
try to hurt herself, saying "Ellie is a monster; Ellie is bad."
Ellie also displayed evidence of sexual abuse, including
excessive masturbation. 	After four years of therapy and despite
the continuity of a single foster home placement, Ellie's
therapist testified Ellie "is a very traumatized child" who has
been diagnosed as suffering from post-traumatic stress disorder.
It is likely that Ellie will need therapy throughout her life.
Sara also shows signs associated with post-traumatic stress
disorder, specifically dissociation. 	From the time Sara entered
foster care, she had problems bonding with caregivers, which her
therapist testified related back to problems arising when Sara
was very young. 	Sara's problems were exacerbated by numerous
foster care placements. 	Like Ellie, Sara displayed excessive
masturbation.
Mark U. Price
I. 	Price argues that the trial court lacked jurisdiction
because no foster care plan seeking adoption rather than return
to parents was filed prior to the filing of the petition to

4
terminate Price's parental rights. 	Code § 16.1-283(A). 	The
record demonstrates that the necessary foster care plan was filed
on February 5, 1993 and the petition was filed on February 8,
1993. 	Therefore, Price's argument is without merit.
II. 	Price also argues that there was insufficient evidence
showing that he was not reasonably likely to substantially
correct the conditions which led to his daughters' foster care
placement. 	Price disputes at length and in detail the
sufficiency of the testimony presented by the DHS witnesses.
However, the trial judge who heard the evidence was entitled to
determine the credibility of the witnesses. 	Bridgeman v.
Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
Competent and credible evidence indicated that Price had been a
physically and emotionally abusive husband and father and that he
refused to accept responsibility for any wrongdoing on his part.
Dr. Sahni had counseled Price extensively between 1990
through early 1993 and testified that Price was not capable of
parenting the girls. 	Dr. Sahni had worked with Price and Sara
and knew Sara had special needs which Price was not able to
address. 	Dr. Sahni also spoke directly with Ellie's therapist.
Dr. Sahni admitted that Price expressed hostility towards Ellie
in connection with a specific allegation of sexual abuse, which
Price initially denied, then explained away as merely
misconstrued. 	Price also claimed that he was the victim of the
physical violence between him and his wife.

5
Donald Soeken testified on Price's behalf. 	Soeken testified
that he had had about thirty face-to-face counseling sessions
with Price in 1987, a few in 1988, and none since that time. 	Any
information Soeken had concerning Price after that time came
through telephone conversations. 	Soeken supported Price's
characterizations of himself as a victim who was "blackballed,"
"framed," and the victim of bad legal and medical advice.
However, Soeken's credibility was undercut by his demonstrated
lack of knowledge of a number of Price's criminal convictions.
Donley testified concerning the abusive conditions of
marriage, as well as her belief that Price had, in fact, sexually
abused his daughter. 	Ellie's foster mother described numerous
specific incidents of highly sexualized behavior by Ellie,
including some attributed by Ellie to "Daddy Mark." 	Dr. Sahni
indicated Price was suspicious of others, tended to blame others,
and had trouble accepting criticism. 	Price's own testimony, when
juxtaposed against the testimony of Dr. Sahni, the foster
parents, Price's ex-wife, and the workers with DHS, demonstrated
Price's inability to accept responsibility for his own actions.
Therefore, there was substantial, credible testimony presented to
the trial court to demonstrate by clear and convincing evidence
the abusive or neglectful conditions which caused the girls to be
placed in foster care had not been substantially corrected or
eliminated to allow the girls' safe return to Price.
III. 	Finally, Price argues that the DHS failed to "exercise

6
reasonable efforts to remedy the conditions" leading to his
children's foster care placement. 	Through DHS and other
agencies, Price and Donley were provided with marital and
individual counseling, parenting classes, housing assistance,
transportation, and job placement referrals. 	While Price was
prohibited from visiting with Ellie following the allegations of
sexual abuse and Price's resulting hostility towards Ellie, DHS
facilitated regular visits with Sara. 	DHS worked to return the
girls home for several years before changing the goal to
adoption.
There was sufficient credible evidence for the trial court
to find that DHS had provided reasonable and appropriate services
designed to eliminate the conditions which led to the foster care
placement.
Linda L. Donley
I. 	Donley argues that there was no evidence that she
neglected or abused her children after her divorce from Price.1
However, DHS was not required to demonstrate incidents of abuse
by Donley while the children were in foster care. 	Instead, DHS
was required to show that the abusive or neglectful conditions
which led to the children's initial foster care placement had not
been and could not be substantially corrected or eliminated
within a reasonable period of time.
1Donley also refutes an incident allegedly described by
Sara's therapist in testimony before the district court. 	No such
incident was described in trial before the circuit court and thus
it is not part of the record before us.

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Several witnesses testified that Donley's ability to parent
did not improve despite her divorce from Price in 1992. 	Donley
faced issues of depression and post-traumatic stress disorder.
She was unable to set appropriate limits on the girls' behavior
during visitations. 	During the time when DHS was working towards
returning the girls to Donley, Ellie's foster mother noted that
Donley returned Ellie several hours earlier than required or
indicated she did not want the girls because she was not feeling
well.
DHS presented prima facie evidence demonstrating that the
abusive or neglectful conditions could not be substantially
corrected so as to allow the children's safe return within a
reasonable period of time.
II. 	Donley contends that her therapist, Dr. Firth, was not
competent to testify about Donley's ability to parent her two
daughters because Dr. Firth had never seen the children or seen
Donley interact with them. 	Dr. Firth had seen Donley in therapy
for several years. 	Based upon her knowledge of Donley, Dr. Firth
admitted that Donley did not qualify as an exceptional parent
"[n]ot for lack of trying, but for the issues that she was still
struggling with within herself to resolve in therapy."
The evidence was overwhelming that the girls had extensive
needs requiring exceptional parenting skills. 	Even if Dr. Firth
was not qualified to opine about Donley's ability to parent these
children based upon actual observation, Dr. Firth was qualified

8
to testify about Donley's abilities to parent children with
exceptional needs. 	Furthermore, Donley raised no objections to
Dr. Firth's competency to render an opinion on Donley's ability
to parent her daughters. 	Therefore, Donley has not demonstrated
that the trial court committed reversible error in admitting Dr.
Firth's opinion testimony.
III. 	Donley admitted that her daughters have special needs
and testified that she was prepared to parent the girls. 	She had
gotten out of an abusive marriage and had worked through the
related battered woman syndrome issues. 	Donley admitted that she
is hampered physically because of her weight, but testified that
she was exercising regularly. 	However, Dr. Firth testified that,
while Donley had made progress, Donley still faced substantial
issues which would require several more years of therapy. 	Donley
admitted that she was not completely recovered.
The evidence demonstrates that Donley had taken steps to
improve the conditions which led to her children's foster care
placement. 	Nevertheless, we cannot say the trial court erred in
finding that the best interests of the girls required the
termination of Donley's parental rights. 	Donley's most recent
attempt to parent the girls was marred by Donley's anger and
frustration. 	Even if Donley's version of the "tying" incident
was accepted, Donley admitted she angrily threatened to tie Sara
to a bed when Sara would not sleep. 	Donley also returned the
girls earlier than necessary, or waived chances to be with the

9
girls. 	DHS's attempts to return the girls to Donley fell apart
through Donley's inability to deal effectively with normal
parenting responsibilities.
Moreover, it is not in the girls' best interests to remain
in foster care until Donley is finally able to provide the
necessary parenting. 	"It is clearly not in the best interests of
a child to spend a lengthy period of time waiting to find out
when, or even if, a parent will be capable of resuming [her]
responsibilities." 	Kaywood v. Dep't of Social Servs., 10 Va.
App. 535, 540, 394 S.E.2d 492, 495 (1990).
Already, the girls have been in foster care for nearly six
years. 	Ellie's therapist testified that Ellie has bonded with
her foster parents, that she loves them and indicates she is
happy with them. 	Ellie needs the "stability and consistency"
which she has with her foster parents, who have demonstrated
their ability to work with the therapist consistently.
Specifically, the therapist offered the following opinion:
If Ellie were to be taken from their home
now, it's my opinion that she would be at
risk to hurt others, hurt herself in very
aggressive behaviors, and/or to withdraw from
the world and become lost in a fantasy world,
to lose her trust in the world and the safety
and security of it.
The therapist also noted that Ellie's play moved past the need
for security at the same time Ellie's visits with Donley stopped.
In her current foster home placement, Sara has established a
close bond with her foster mother. 	Sara shows signs of both

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psychological and physiological improvement and maturity. 	Sara's
therapist testified that if the bond with Sara's current foster
parents was broken,
I don't know how this child would ever
comprehend that it really had nothing to do
with her, and that people were really looking
after her needs. 	Because it certainly would
make her very, very despairing and despondent
internally, and I don't know how that would
affect her development.
The therapist noted that Sara "needs to be where adults could put
her needs first, where they can cater to that and then offer
appropriate limits and boundaries to help her continue to grow."
DHS presented clear and convincing evidence to demonstrate
that it was in the best interests of these children to terminate
the parental rights of Price and Donley. 	The trial court's
decision was not plainly wrong or without evidence to support it.
Accordingly, that decision is summarily affirmed.
Affirmed.