Timothy Lecky and Lavetta Lecky v Michele Reed

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Willis and Bray
Argued at Norfolk, Virginia
TIMOTHY LECKY and LAVETTA LECKY
v. 	Record No. 0646-94-1 	OPINION BY
JUDGE RICHARD S. BRAY
MICHELE REED 	MAY 2, 1995
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Frederick B. Lowe, Judge
James Amery Thurman (Thurman & Thurman, on briefs), for
appellants.
Doris L. Edmonds for appellee.
Acting on petition of Timothy and Lavetta Lecky (petitioners),
the Virginia Beach Juvenile and Domestic Relations District Court
(J&D Court) terminated the residual parental rights of Michele Reed
(mother) in her son, Jordan R. Reid, pursuant to Code
§ 16.1-283(C). 	Mother appealed to the trial court and, following a
hearing ore tenus, the court denied the petition concluding that,
although the substantive evidence supported termination, the
mother's age constituted "good cause" for her failure to remedy
timely those conditions which originally "led to the child's foster
care placement." 	See Code § 16.1-283(C)(2).
Petitioners appeal, complaining that the trial court
erroneously denied relief clearly appropriate to the circumstances
in accordance with Code § 16.1-283(C)(2). 	Assigning cross-error,
mother asserts procedural irregularities as a bar to petitioners'
"standing" to pursue termination. 	She also challenges the
constitutionality of Code § 16.1-283(C)(2) and the sufficiency of
the evidence to establish that termination was in Jordan's best

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interests. 	We agree that the evidence supported termination, but
find that mother's failure to remedy the conditions which prompted
foster care in accordance with Code § 16.1-283(C)(2) was without
the requisite "good cause" and, therefore, reverse the order.
The facts are uncontroverted. 	Jordan was born April 30, 1991,
of an unknown father. 	Mother was then fourteen years of age and in
the custody of Patrick and Denise Creary, having been voluntarily
placed with them by her estranged mother.1 Mother and Jordan
remained in the Creary home until the custody of mother was
transferred to the Virginia Beach Department of Social Services
(DSS) in mid-July, 1991, in response to a petition of Mr. and Mrs.
Creary for "relief." 	Jordan thereafter remained briefly with Mr.
and Mrs. Creary, and was reunited with mother on August 12, 1991,
through a DSS placement in a "therapeutic foster home." 	However,
mother "ran away" shortly thereafter, and Jordan was transferred to
"regular" foster care with petitioners where he has remained since
September 4, 1991.
DSS subsequently developed a "foster care plan," which was
submitted to and approved by the J&D Court, to place mother in a
"residential group" setting and Jordan with relatives or "other
appropriate" persons, subject to visitation with mother. 	The plan
was intended to provide for Jordan's physical needs in a "nurturing
and stimulating environment," while "stabiliz[ing] [mother]
psychologically and emotionally" with a "treatment plan . . . to
1Mother's father had previously committed suicide.

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enable her to parent" Jordan "in the future." 	These "treatment
goals" were disrupted, however, by mother's persistent "runaway
behavior" throughout the remainder of 1991 and into early 1992. 	As
a result, petitioners moved the J&D Court for custody of Jordan,
and DSS petitioned to terminate the parental rights of both mother
and the unknown father. 	The DSS petition was accompanied by a
second foster care plan, dated June 26, 1992, which documented
termination as "being in the best interests of the child." 	Code
§ 16.1-283(A).
Several "home studies," psychological and like assessments of
the parties involved were undertaken incidental to these petitions.
The record discloses that mother "tested . . . borderline mental
retarded" and evidenced a "high risk for abuse/neglect" of Jordan.
She displayed "parenting practices of corporal punishment, . . .
rejection of [Jordan] for failure to comply with an order and
appeasing [him] by allowing an inappropriate activity." 	Mother and
Jordan were "emotionally distanced," and she "lack[ed] empathy."
Jordan's "interaction" with mother "was . . . evocative of one
between a babysitter and a child." 	Observations of Jordan
following visitation with mother "revealed a high level of
demandingness, disorganized, . . . difficult" and "anxious
behaviors."
Evaluations of Jordan characterized a "cheerful," "alert,"
"curious," "attentive" child of "average" intelligence, without
noted physical disability. 	He exhibited significant "attachment,"
a "parent-child interaction," with his foster mother, petitioner

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Mrs. Lecky. 	Petitioners have provided Jordan with a "stable
environment" of "rules and expectations[,] . . . stated and
enforced with . . . loving [and] understanding," essential to his
development into a "secure, productive, law abiding citizen."
Jordan "responds positively" to the "appropriate parenting
attitudes, and . . . sensitive . . . style" of Mrs. Lecky.
Separation from petitioners would be disruptive and "harmful" to
Jordan, and mother's ability to provide his resulting need for
emotional support was termed "questionable."
A hearing before the J&D Court on the consolidated petitions
was originally scheduled for August 14, 1992, but postponed until
December 3, 1992, on motion of DSS because mother had demonstrated
"progress toward having Jordan returned to her custody." 	This
improvement in "parenting skills" continued until the December
hearing, and the J&D Court then granted custody of Jordan to
petitioners, but denied the DSS termination petition.2 However,
mother's "runaway" and attendant irresponsible behavior reoccurred
shortly thereafter, prompting the instant petition on June 25,
1993, and related November 3, 1993 order of the J&D Court to
terminate her parental rights. 	Although evidence at the January 6,
1994 hearing on appeal to the trial court indicated that mother was
again "doing well" in a "group home," this followed yet another
"runaway" episode the preceding month.
At the conclusion of the ore tenus hearing on appeal to the
2The petition was granted, however, with respect to the unknown
father.

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trial court, the court concluded that "termination [was] in the
best interests of the child . . . and that [mother] has been
unwilling and unable to remedy substantially the conditions which
led to the foster care placement of the child . . . notwithstanding
the reasonable and appropriate efforts of the [DSS] to such end."
The court recognized that, absent "good cause," Code
§ 16.1-283(C)(2) required a parent to resolve such "conditions"
within a "reasonable period not to exceed twelve months." 	Id.
However, finding that "the statute, . . . does not contemplate a
sixteen-year-old parent and that . . . 'a reasonable period of
time' is different for a minor than for an adult," the court
determined that the "age of the mother" constituted "good cause"
for her failure to satisfy the "'reasonable time' standard" of Code
§ 16.1-283(C)(2) and denied termination. 	See generally id.
Code § 16.1-283 embodies "[t]he statutory scheme for the . . .
termination of residual parental rights in this Commonwealth."
Rader v. Montgomery County Dep't of Social Servs., 5 Va. App. 523,
526, 365 S.E.2d 234, 235 (1988). 	This "scheme provides detailed
procedures designed to protect the rights of the parents and their
child," id. at 526, 365 S.E.2d at 236-36, balancing their interests
while seeking to preserve the family. 	Kaywood v. Halifax County
Dep't of Social Servs., 10 Va. App. 535, 539, 394 S.E.2d 492, 494
(1990). 	However, we have consistently held that "[t]he child's
best interest is the paramount concern." 	Wright v. Alexandria Div.
of Social Servs., 16 Va. App. 821, 827, 433 S.E.2d 500, 503 (1993),
cert. denied, 115 S. Ct. 651 (1994).

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Code § 16.1-283(C)(2) provides, in pertinent part, that
[t]he residual parental rights of a parent or parents of
a child placed in foster care as a result of court
commitment . . . 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 . . . [t]he
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 . . . rehabilitative agencies to such end.
(Emphasis added). 	The statute identifies circumstances which
"shall constitute prima facie evidence of the conditions" requisite
to termination, including failure by the parent or parents,
"without good cause, . . . to make reasonable progress towards the
elimination of the conditions which led to 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." 	Code § 16.1-283(C)(3); see Logan v. Fairfax County Dep't
of Human Dev., 13 Va. App. 123, 130, 409 S.E.2d 460, 464 (1991).
The statute clearly contemplates that efforts to resolve the
"conditions" relevant to termination are constrained by time. 	Code
§ 16.1-283(C)(2). 	Absent "good cause," a parent or parents
receiving the "reasonable and appropriate" services of
"rehabilitative agencies" must "remedy substantially" the
"conditions which led to . . . foster care" of the child in a
"reasonable period not to exceed twelve months." 	Id. 	This
provision protects the family unit and attendant rights of both
parents and child, while assuring resolution of the parent/child
relationship without interminable delay. 	"It is clearly not in the

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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." 	Kaywood, 10 Va. App. at 540, 394 S.E.2d
at 495.
Here, the record clearly supports the trial court's
determination that (1) termination was in Jordan's best interests,
and (2) that mother had been either unwilling or unable to remedy
those conditions which led to Jordan's placement in foster care
within twelve months, notwithstanding the significant efforts of
DSS. 	Accordingly, these requirements of Code § 16.1-283(C)
indispensable to termination of a mother's parental rights were
satisfied. 	Nevertheless, the court declined to terminate because
mother's "age" provided "good cause" or excuse for her
unwillingness or inability to cure timely the circumstances which
gave rise to foster care.
While age of the parent or parents is doubtless an appropriate
consideration in assessing "good cause" in the context of Code
§ 16.1-283(C), it is not a circumstance which prevails over the
best interests of the child. 	Nothing in this record attributes
mother's parental deficiencies to her age or suggests that the mere
passage of time would resolve her difficulties. 	Thus, further
delay would prolong Jordan's familial instability without the
promise of benefit to him, a result clearly contrary to the child's
best interests. 	Under such circumstances, mother's age does not
alone constitute good cause to excuse her failure to resolve the
conditions which prompted Jordan's foster care in accordance with

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statute.
We turn next to mother's assignments of cross-error and first
address her challenge to the sufficiency of the evidence to prove
that termination serves Jordan's best interests. 	The evidence was
overwhelming that mother pursued an unstable and irresponsible
lifestyle, incompatible with Jordan's needs and reflective of an
indifference to his interests. 	This conduct spanned the child's
entire life, despite the best efforts and substantial resources of
DSS to assist and redirect mother in her behavior and parenting
skills. 	Guided by Jordan's best interest, the record therefore
provided the requisite "clear and convincing evidence" that
termination of mother's residual parental rights in Jordan was the
appropriate statutory remedy. 	Code § 16.1-283(C).
Deficiencies in the record preclude our consideration of
mother's remaining arguments. 	Mother objected to the order of the
trial court only "on the issue of finding that termination is in
the best interests of Jordan Reid." 	"No ruling of the trial court
. . . will be considered as a basis for reversal unless the
objection was stated together with the grounds therefor at the time
of the ruling, except for good cause shown or to enable the Court
. . . to attain the ends of justice." 	Rule 5A:18 (emphasis added).
Further, we will not review an issue first argued on appeal.
Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631
(1991) (citations omitted). 	A contrary rule would "'deny the trial
court the opportunity to consider and weigh, and, if necessary,
reconsider before finally ruling.'" 	Mounce v. Commonwealth, 4 Va.

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App. 433, 435, 357 S.E.2d 742, 744 (1987) (quoting Floyd v.
Commonwealth, 219 Va. 575, 584, 249 S.E.2d 171, 176 (1978)).
During oral argument, mother urged that we apply the "ends of
justice" exception to the procedurally defaulted arguments. 	See
Rule 5A:18; see also Mounce, 4 Va. App. at 436, 357 S.E.2d at 744.
However, "to avail [herself] of the rule [she] had to
affirmatively show . . . that the error [was] clear, substantial
and material," constituting a "miscarriage of justice," an "obvious
injustice." 	Brown v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d
8, 11 (1989). 	Such circumstances are not demonstrated by this
record. 	Accordingly, we reverse the judgment of the trial court
and order the residual parental rights of mother terminated in
accordance with Code § 16.1-283(C).
Reversed and final judgment.