Linda Bivins v New Kent County D.S.S.

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COURT OF APPEALS OF VIRGINA

Present: Judges Elder, Lenons and Senior Judge Cole
Argued at Richnond, Virginia

LI NDA BI VI NS
MEMORANDUM OPI N ON’ BY
Vv. Record No. 0304- 99- 2 J UDGE MARVIN F. COLE
NOVEMBER 2, 1999
NEW KENT COUNTY DEPARTIVENT
OF SOCIAL SERVI CES

FROM THE CI RCU'T COURT OF NEW KENT COUNTY
WlliamH Shaw III, Judge

(Rhonda L. Earhart, on brief), for appellant.
Appellant submitting on brief.

(Janes E. Cornwell, Jr.; C. Mchael DeCanps;

Sands, Anderson, Mrks & Mller, on brief),

for appellee. Appellee submtting on brief.

linda Bivins (Bivins) appeals the decision of the circuit

court termnating her parental rights to her children, Adamand
Flisabeth Sewell. Bivins contends that the record contains no
indication that the New Kent County Departnent of Social Services
(DSS) filed wth the juvenile and donestic relations district
court a foster care plan neeting the requirenents of Code
§ 16. 1-281(B). Bivins also contends that DSS failed to present
clear and convincing evidence sufficient under Code § 16. 1-283 to

termnate her parental rights. W find that the contentions

* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

Bivins raised on appeal are without merit, and we affirm the
decision of the trial court.
"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 Development,
13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991).
"In matters of a child's welfare, trial
courts are vested with broad discretion in
making the decisions necessary to guard and
to foster a child's best interests." 	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. (citations omitted).
Both children are special needs children with cerebral
palsy. 	Elisabeth, who was born prematurely after Bivins stabbed
herself three times in the vagina, weighed three pounds at
birth. 	At the time she came into foster care, Elisabeth was
developmentally delayed and mentally retarded. 	She suffered
from extremely poor hygiene. 	She was a victim of at least one
instance of sexual abuse by her father, Dennis Sewell (Sewell).
Elisabeth had difficulty sleeping, with nightmares, night
wanderings, and bedwetting.
At birth, Adam weighed two and one-half pounds and tested
positive for cocaine. 	At age four, when he was placed in foster
care, he weighed twenty-two pounds, and could not speak, walk,
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or eat. 	His dental hygiene was so poor that he had fourteen
teeth extracted.
At the time the children were placed in foster care in
December 1995, Bivins was incarcerated on charges of
prescription drug fraud. 	The children were then in the custody
of their father and his parents, John and Rose Murdock.
Both children made great strides while in foster care. 	At
the time of the termination hearing, each demonstrated greater
ability to function and to care for themselves. 	Both children
continued to face substantial medical and developmental
challenges in the future.
Foster Care Plan
Code § 16.1-281 requires social services agencies such as
DSS to develop foster care plans detailing the services to be
offered children placed in their legal custody. 	Subsection (B)
provides, in pertinent part, that "[i]f consistent with the
child's health and safety, the plan shall be designed to support
reasonable efforts which lead to the return of the child to his
parents or other prior custodians within the shortest
practicable time which shall be specified in the plan." 	Bivins
contends that the record fails to demonstrate that a foster care
plan meeting the statutory requirements of Code § 16.1-281 was
filed with the juvenile and domestic relations district court.
Specifically, although Bivins admits that a foster care plan
dated August 4, 1998 was prepared, she contends that an earlier
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plan was the plan documenting termination of her parental rights
as being in the best interests of the children.
Bivins concedes that the plans were admitted into the
juvenile and domestic relations district court record and DSS
was not required to refile them in the circuit court during the
trial de novo. 	See Todaro v. Alexandria Dep't of Social Servs.,
226 Va. 307, 309 S.E.2d 303 (1983). 	The transcript of the
circuit court hearing demonstrates that the foster care plans
were admitted into evidence before the circuit court by
stipulation and without objection. 	The record on appeal
contains the plans. 	The trial court approved the plan "filed
herein by [DSS]," and its order is presumed to be a correct
recitation of the facts. 	We find no merit in this challenge to
the order approving the foster care plans.
Sufficiency of the Evidence
Bivins contends that the trial court erred when it found
that DSS presented clear and convincing evidence sufficient to
support termination of her parental rights pursuant to Code
§ 16.1-283. 	"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). 	We find no error.
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The trial court found that clear and convincing evidence
supported the termination of Bivins' parental rights pursuant to
Code § 16.1-283(B). 	Code § 16.1-283(B)(1) and (2) provide, in
pertinent part, that the parental rights of parents of a child
placed in foster care after being found by a court to be
neglected or abused may be terminated if the court finds that
termination is in the best interests of the child and finds
clear and convincing evidence 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.
The trial court also found that DSS presented sufficient
evidence under Code § 16.1-283(C) to terminate Bivins' parental
rights. 	Under Code § 16.1-283(C)(2), the parental rights of a
child placed in foster care may be terminated if the court finds
by clear and convincing evidence that it is in the best
interests of the child and that:
2. 	The parent . . ., without good cause,
[has] been unwilling or unable within a
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reasonable period 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 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 established that the children were placed in
foster care in 1995, while Bivins was incarcerated and the
children were in the custody of Sewell and the Murdocks. 	The
trial court reviewed the evidence based upon the steps Bivins
had taken to satisfy her responsibilities under the foster care
plan prepared after her release from prison in January 1997.
Pat Woods, the DSS social worker, testified that DSS made
arrangements for Bivins to have visitation with the children,
kept her informed of doctors' appointments and school meetings,
and provided a contract worker to assist Bivins with parenting
skills during visitation. 	Woods testified that, despite the
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requirements set out by court order, Bivins failed to file a
psychological assessment with DSS or to cooperate with the home
study and background check on her fiancé.
At trial, Bivins admitted that she had problems with drug
abuse, particularly abuse of prescription painkillers. 	She
admitted that a March 1998 urine test revealed evidence of drug
use, but testified that she was undergoing drug counseling.
While she admitted that she attended only some of the children's
medical appointments and did not attend any meetings at school,
Bivins testified that she lived too far away to attend those
meetings regularly. 	She also testified that transportation and
finances prevented her from complying with some of her
responsibilities under the foster care plan. 	Bivins said that
she was sometimes late for visitation because it was impossible
to get to New Kent from Norfolk for a 9:00 visitation on
Saturdays due to traffic. 	Sometimes, their car would break down
and they needed to rent one. 	She was out of work for over a
year as a result of a work-related injury, and her fiancé also
lost his employment. 	She would not call DSS very often because
it was too expensive to make the long distance call. 	She also
refused to pay the $15 necessary to complete the background
check of her fiancé because they did not have the money. 	Bivins
indicated at trial that she would gladly pay for the background
check now and would be willing to move from Norfolk to New Kent.
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While Bivins contends that DSS failed to provide her with
sufficient services to allow the children to return to her, the
record supports the trial court's finding that Bivins failed to
substantially correct the conditions which led to the children's
foster care placement despite DSS's reasonable rehabilitative
efforts. 	It is true that Bivins completed some parenting and
anger control classes while in prison. 	However, the evidence
indicated that she failed to implement what she had learned into
her dealings with the children. 	Nancy Geary, Elisabeth's
therapist, indicated that Elisabeth became upset after
visitation with Bivins and complained that Bivins "smacked" her
in the face. 	Significantly, Geary noted that Elisabeth changed
from wanting to be with Bivins to not wanting to be with her.
That's because of the lack of parent-child
relationship. 	That's not necessarily the
lack of contact. 	The contact that she did
have was not successful, was not promoting
toward a loving relationship.
Geary also noted that Bivins failed to follow through on Geary's
offers of assistance or her recommendations that Bivins take a
parenting class, receive psychological assessment, or have
individual counseling. 	Bivins also threatened her following a
previous court hearing.
Tammy Bays, the contract worker supervising the
visitations, testified that Bivins was often frustrated dealing
with the children and focused on herself rather than attending
to the needs of the children. 	Bivins lacked an understanding of
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the severity of her children's problems and, lacking that
understanding, failed to provide the parenting skills necessary
to assist the children.
While Bivins indicated her willingness in the future to
live closer to the children, she made no effort to do so in the
past despite her repeated complaints that the distance made it
impossible for her to attend the children's medical
appointments, educational planning sessions, or arrive on time
for visitation. 	"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. Halifax County Dep't of Social
Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990). 	The
trial court was not required to place more credibility in her
proposed plans for the future than warranted by her actions in
the past. 	Moreover, other evidence demonstrated that increased
contact, without an improvement in Bivins' parenting and anger
management skills, would not be in the children's best
interests.
Evidence in the record fully supports the findings of the
trial court that DSS presented clear and convincing evidence
sufficient under Code § 16.1-283(B) and (C) to terminate Bivins'
parental rights to Adam and Elisabeth.
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Accordingly, the decision of the circuit court is affirned.

Af firned.