Brandon v City of Danville DSS

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Coleman and Elder
Argued at Salem, Virginia
BETTY JOHNSON BRANDON MEMORANDUM OPINION* BY
v. 	Record No. 2382-95-3 	JUDGE LARRY G. ELDER
OCTOBER 1, 1996
CITY OF DANVILLE DIVISION
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
William N. Alexander, II, Judge
W. Clarke Whitfield, Jr. (Turner, Haskins &
Whitfield, on brief), for appellant.
James R. Saul, City Attorney, for appellee.
Betty Johnson Brandon (appellant) appeals the trial court's
decision to terminate her residual parental rights pursuant to
Code § 16.1-283(C). 	Appellant contends that "clear and
convincing evidence" did not support the trial court's decision.
We disagree and affirm the trial court's judgment.
"Code § 16.1-283 embodies the statutory scheme for the
termination of residual parental rights in this Commonwealth."
Lecky v. Reed, 20 Va. App. 306, 311, 456 S.E.2d 538, 540 (1995).
Code § 16.1-283(C), the subsection under which the trial court
terminated appellant's parental rights in this case, states:
The residual rights of a parent or parents of
a child placed in foster care as a result of
court commitment, an entrustment agreement
entered into by the parent or parents or
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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other voluntary relinquishment by the parent
or parents 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 parent or parents have, without
good cause, failed to maintain contact with
and to provide or substantially plan for the
future of the child for a period of twelve
months after the child's placement in foster
care notwithstanding the reasonable and
appropriate efforts of social, medical,
mental health or other rehabilitative
agencies to communicate with the parent or
parents and to strengthen the parent-child
relationship; or
2. 	The parent or parents, without good
cause, have been unwilling or unable within a
reasonable period not to exceed twelve months
to remedy substantially the conditions which
led to the child's foster care placement,
notwithstanding the reasonable and
appropriate efforts of social, medical,
mental health or other rehabilitative
agencies to such end.
(Emphasis added).
We are mindful of the principle that "[t]he termination 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). 	However, this Court
has "consistently held that the child's best interest is the
paramount concern." 	Lecky, 20 Va. App. at 311, 456 S.E.2d at
540. 	"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 responsibilities." 	Id.
at 312, 456 S.E.2d at 540.

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Our standard of review in this case is well-settled:
On review, a trial court is presumed to have
thoroughly weighed all the evidence, the
statutory requirements, and made its
determination based on the child's best
interests. 	Furthermore, the evidence is
viewed in the light most favorable to the
prevailing party below and its evidence is
afforded all reasonable inferences fairly
deducible therefrom. 	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.
Logan v. Fairfax County Dep't of Human Dev., 13 Va. App. 123,
128, 409 S.E.2d 460, 463 (1991)(quotations and citations
omitted).
In this case, we hold that the record supports the trial
court's decision to terminate appellant's parental rights in
Matthew's best interests. 	The trial court was not plainly wrong
in concluding that appellant's actions met the requirements of
Code § 16.1-283(C)(1) and (2). 	See Toombs v. Lynchburg Div. of
Social Svcs., 223 Va. 225, 288 S.E.2d 405 (1982). 	Appellant "did
not maintain contact with the child or the agency on a regular
basis," Barkey v. Commonwealth, 2 Va. App. 662, 669, 347 S.E.2d
188, 192 (1986), and appellant visited the child sporadically,
including only twelve times over a two year period. 	"The record
discloses that there were ample services offered and available to
[appellant]," but she chose not to take full advantage of them.

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Id. at 670, 347 S.E.2d at 192.
Furthermore, a professional counselor testified that
Matthew, who has been in Social Services' custody for almost
eight years, would be harmed by engaging in an emotional
relationship with appellant. 	Although the counselor strongly
confronted appellant in 1992 about the need to consistently
"follow through" with Matthew, appellant was either unwilling or
unable to do so on an extended basis after 1992. 	Another
therapist stated that appellant had difficulty in attending
therapy sessions outlined in a written agreement between
appellant and the Division of Social Services.
The parties acknowledge appellant's interest in maintaining
custody of Matthew. 	See Banes v. Pulaski Dep't of Social Svcs.,
1 Va. App. 463, 467, 339 S.E.2d 902, 905 (1986). 	Appellant
recently completed a parenting class while incarcerated and
testified that she possessed a newfound ability to care for
Matthew. 	However, despite appellant's love for her child, the
actions she took since 1988 to provide Matthew with a long-term,
stable, and safe home environment have proved unsatisfactory.
The facts of this case stand in contrast to those cases where a
parent displayed a passionate interest in maintaining contact
with a child placed into foster care or where a parent
substantially remedied the conditions leading to the child's
placement into foster care. 	See, e.g., Edwards v. County of
Arlington, 5 Va. App. 294, 312, 361 S.E.2d 644, 654 (1987).

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Furthermore, in this case, appellant's failures were without
"good cause." 	See Logan, 13 Va. App. at 130, 409 S.E.2d at 464.
Keeping in mind that "[o]ur function is not to substitute
our judgment for that of the trial judge," Ward v. Commonwealth,
13 Va. App. 144, 148, 408 S.E.2d 921, 923 (1991), we hold that
the trial court did not err in this case. 	Accordingly, we affirm
the trial court's decision.
Affirmed.