                                COURT OF APPEALS OF VIRGINIA


Present: Judges Haley, Millette and Senior Judge Coleman


TAUNYA CHAPPELL
                                                                 MEMORANDUM OPINION *
v.      Record No. 2663-07-4                                         PER CURIAM
                                                                     JUNE 3, 2008
ALEXANDRIA DEPARTMENT
 OF HUMAN SERVICES


                  FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                                   John E. Kloch, Judge

                  (George P. Doss, Jr., on brief), for appellant. Appellant submitting
                  on brief.

                  (Mary Elliott O’Donnell; Ignacio Pessoa; Office of the City
                  Attorney, on brief), for appellee. Appellee submitting on brief.

                  (Gwena Kay Tibbits, on brief), Guardian ad litem for the minor
                  children. Guardian ad litem submitting on brief.


        Taunya Chappell (mother) appeals a decision of the trial court terminating her residual

parental rights to her four minor children, L.C., K.C., A.A., and Ky.C., pursuant to Code

§ 16.1-283(C)(2). Mother contends the trial court erred in (1) admitting into evidence Alexandria

Department of Human Services’ (“ADHS”) Exhibit #20 - - copies of the four Alexandria Juvenile

and Domestic Relations District Court’s (“J & DR court”) Orders for Involuntary Termination of

Residual Parental Rights of mother; and (2) finding clear and convincing evidence to support

termination of her residual parental rights to her four minor children under Code § 16.1-283(C)(2),

by considering them as a group, rather than considering the best interests of each child individually.

Finding no error, we affirm the trial court’s decision.


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

        Mother argues that upon her appeal from the J & DR court, its orders terminating her

residual parental rights to L.C., K.C., A.A., and Ky.C. were annulled, and a trial de novo ensued in

the trial court, as if the previous orders never existed. 1 Mother argues, therefore, that the trial court

erred in admitting the J & DR court’s termination orders “‘as evidence to consider whether the

procedural history of the case, the fact that they made a finding consistent with the code,’” and

thereby denied her a trial de novo. Mother contends the trial judge knew the history of the case

because it was before him on appeal and, therefore, had no reason to admit the J & DR court’s

termination orders. Mother further argues the trial court’s admission of Exhibit 20 denied her right

to due process of law and effectively shifted the burden of going forward with evidence from ADHS

to mother and, therefore, did not constitute harmless error. We disagree.2

                [A]n appeal from the juvenile court must be heard de novo by the
                circuit court. Code § 16.1-136. “‘A de novo hearing means a trial
                anew, with the burden of proof remaining upon the party with
                whom it rested in the juvenile court.’” A trial de novo in the
                circuit court “annuls the judgment of the [juvenile court] as
                completely as if there had been no previous trial . . . and . . . grants
                to a litigant every advantage which would have been [available to
                the litigant] had the case been tried originally in [the circuit]
                court.” “‘A court which hears a case de novo, which disregards the
                judgment of the court below, which hears evidence anew and new
                evidence, and which makes final disposition of the case, acts not as
                a court of appeals but as one exercising original jurisdiction.’”




        1
         Mother refers to those orders as Exhibit 20. However, our review of the record shows
the orders were admitted as Exhibits 20A, 20B, 20C, and 20D, one for each minor child. For
purposes of this opinion, we will refer to them collectively as Exhibit 20.
        2
          We do not consider mother’s argument with respect to the trial court’s admission of
Exhibit 21 - - the J & DR court orders terminating Josiah Beatty’s residual parental rights to
L.C., A.A., and Ky.C. - - because mother specifically limited her first question presented to the
trial court’s admission of Exhibit 20. See Hillcrest Manor Nursing Home v. Underwood, 35
Va. App. 31, 39 n.4, 542 S.E.2d 785, 789 n.4 (2001) (declined to consider “an issue not
expressly stated among the ‘questions presented’”).
                                               -2-
Fairfax County Dep’t of Family Servs. v. D.N., 29 Va. App. 400, 406, 512 S.E.2d 830, 832-33

(1999) (citations omitted). The admissibility of evidence rests in the sound discretion of the trial

court. Breeden v. Commonwealth, 43 Va. App. 169, 184, 596 S.E.2d 563, 570 (2004).

          The record belies mother’s assertion that the trial court did not afford her a trial de novo and

shifted the burden of going forward with evidence to her as a result of its admission of Exhibit 20.

To the contrary, the record clearly shows that the trial court admitted Exhibit 20, but limited its “use

to show the procedural history of the case, not the substantive history . . . .” The trial court assured

the parties that it would not “take into consideration the findings of the Lower Court, but only the

procedural history, the fact that they made a finding consistent with the code.” The trial judge

conducted a de novo trial, over the course of three days, which included testimony from twelve

witnesses and the admission of numerous exhibits.

          Had this been a jury trial, mother’s argument might be persuasive. However, this was a

bench trial. The evidence was admissible and received only to show the procedural history of

the case not for its substantive value. In the absence of proof to the contrary, we presume that

the trial judge received and considered the evidence only for the purpose for which it was

tendered and received. A trial judge is presumed to apply the law correctly and to consider

evidence within its proper context. See Mason v. Commonwealth, 219 Va. 1091, 1098, 254

S.E.2d 116, 120 (1979); Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291

(1977).

          Accordingly, based on this record, we find no abuse of discretion in the trial court’s

admission of Exhibit 20.

                                                     II.

          The crux of mother’s argument is that ADHS failed to put forward clear and convincing

evidence to support the termination of her residual parental rights under Code § 16.1-283(C)(2) with

                                                    -3-
respect to each individual child, L.C., K.C., A.A., and Ky.C., rather than with respect to them as a

group. Mother contends the statute speaks to “a child” in the singular, yet ADHS presented its case

with respect to her four minor children as a group. She, therefore, asserts that the trial court erred by

failing to determine whether she could effectively parent a fewer number of the children at issue in

this case, plus two other children, N.C. and S.C., who were residing with her. She contends the trial

court, by terminating her residual parental rights as to all four children, effectively shifted the clear

and convincing burden to her to prove she could effectively parent one or more of the four children

for which ADHS sought termination.

        Mother also argues ADHS failed to provide her reasonable and appropriate services as

required by Code § 16.1-283(C)(2), because it breached its plan to reintroduce and return her

children two at a time, shortly after the release of Dr. Christopher Bishop’s psychological testing of

mother, so as to allow her to demonstrate her ability to properly parent all of her children. She

contends Dr. Bishop, who evaluated her approximately one year prior to the trial court’s termination

hearing, evaluated her ability to parent all six of her children, but that he offered no opinion as to

whether she could effectively parent fewer than six children. Finally, she asserts her evidence

showed she had adequate housing to accommodate all six of her children and adequate income to

support her entire family.

        We view the evidence in the light most favorable to the prevailing party below and grant

to it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax County Dep’t of

Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991). Furthermore,

                “[i]n 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. at 128, 409 S.E.2d at 463 (quoting Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795


                                                   -4-
(1990); Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988)). Recognizing 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)

(quoting Lowe v. Dep’t of Pub. Welfare, 231 Va. 277, 280, 343 S.E.2d 70, 72 (1986)), we,

nevertheless, “‘presume[] [the trial court has] thoroughly weighed all the evidence, considered

the statutory requirements, and made its determination based on the child’s best interests.’”

Logan, 13 Va. App. at 128, 409 S.E.2d at 463 (quoting Farley, 9 Va. App. at 329, 387 S.E.2d at

796).

        Code § 16.1-283 provides for the termination of residual parental rights under carefully

defined circumstances. Here, the trial court concluded that the evidence warranted termination

of mother’s residual parental rights to K.C., L.C., A.A., and Ky.C. under subsection (C)(2) of

Code § 16.1-283.

        Code § 16.1-283(C)(2) requires proof, by clear and convincing evidence that (1) the

termination is in the best interests of the child, (2) “reasonable and appropriate” services have

been offered to help the parent “remedy substantially the conditions which led to or required

continuation of the child’s foster care placement,” and (3) despite these services, the parent has

failed, “without good cause,” to remedy those conditions “within a reasonable amount of time

not to exceed twelve months from the date the child was placed in foster care.” In addition,

“[t]he court shall take into consideration the prior efforts of such [agency] to rehabilitate the

parent . . . prior to the placement of the child in foster care.” Id.

        In determining what is in the child’s best interests, a court must evaluate and consider

many factors, including the child’s age and physical and mental condition, the parent’s age and

physical and mental condition, the relationship between the child and parent, the child’s needs,




                                                  -5-
and the role the parent has and will play in the child’s upbringing. Barkey v. Commonwealth,

Alexandria Dep’t of Human Servs., 2 Va. App. 662, 668, 347 S.E.2d 188, 191 (1986).

       “The twelve-month time limit established by Code § 16.1-283(C)(2) was designed to

prevent an indeterminate state of foster care ‘drift’ and to encourage timeliness by the courts and

social services in addressing the circumstances that resulted in the foster care placement.” L.G.

v. Amherst County Dep’t of Soc. Servs., 41 Va. App. 51, 56, 581 S.E.2d 886, 889 (2003).

               The legislation established a reasonably presumptive time frame of
               twelve months for parents to receive rehabilitative services to
               enable them to correct the conditions that led to foster care
               placement . . . . If the parent fails to substantially remedy those
               conditions within twelve months the court may act to prevent the
               child from lingering in foster care.

Id. at 57, 581 S.E.2d at 889.

       Here, the record contains credible evidence to support the trial court’s finding that

termination of mother’s residual parental rights is in the best interests of each of her four minor

children, L.C., K.C., A.A., and Ky.C. and that the requirements of Code § 16.1-283(C)(2) have

been proven.

       Mother’s parental rights were terminated because of her lack of substantial progress over

a reasonable period of time, not to exceed twelve months, in remedying the circumstances that

led to the removal of L.C., K.C., A.A., and Ky.C. from her care, that is, her inability to

“effectively care for her children, including not providing adequate housing or adequate income,”

which placed them at risk of being abused and neglected. The evidence proved that additional

time would not remedy mother’s level of functioning as a parent nor her inability to ensure the

health, safety, and well-being of the four children.

       At the time of the October 2007 termination hearing in the trial court, over two and

one-half years had passed since the J & DR court approved foster care service plans for L.C.,

K.C., A.A., and Ky.C. At that time, mother was still either unable or unwilling to provide stable
                                                -6-
housing for her children. She testified that she did not have adequate income to continue living

in her current subsidized housing, which lease was due to expire in October 2007 and where she

had to pay rent of $350 per month plus utilities. She indicated that she planned to move from

that location, but she had not provided ADHS with a new address. She claimed in her testimony

that she had located a new residence in Springfield, Virginia. However, she acknowledged it had

three bedrooms. She stated that she would put L.C., KC., S.C., and N.C. in a bedroom with

another child, despite a therapist’s recommendation that L.C. not sleep in the same bedroom as

K.C. or with any another child due to prior sexual abuse between L.C. and K.C. and despite

mother having signed a safety contract prohibiting N.C. and S.C. from sleeping together or with

any other children. Mother was working only six hours per week at the rate of eight dollars per

hour. Despite intensive home services, counseling and psychological evaluations of mother

revealed serious impediments existed to her ability to parent L.C., K.C., A.A., and Ky.C. The

trial court heard extensive testimony from ADHS personnel, the children’s foster parents, a

therapist, and psychologists, which revealed the special needs and circumstances of each child,

and mother’s inability to effectively parent them independently without substantial and ongoing

assistance.

       Mother married Josiah Beatty, a convicted felon and the father of L.C., A.A., and Ky.C.,

as well as two other children with another woman, in February 2007. He was unemployed in

October 2007, just as he had been in October 2004, when ADHS first became involved with the

family. Dr. William Ling, who performed a Parent-Child Assessment on August 30, 2007,

opined that Beatty and mother still needed to resolve how to coordinate their parenting

responsibilities, to learn how to provide a consistent, organized structure for the family, and learn

how to articulate clear expectations for the children. Dr. Ling expressed concerns about Beatty’s

ability to be consistent and supportive of mother and the children and his history of failing to

                                                -7-
maintain employment on a consistent basis. Dr. Ling opined that the lack of organization and

structure in the parenting displayed by mother and Beatty creates a risk of neglect and continued

or increased inappropriate sexual behaviors between the 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 [her] responsibilities.”

Kaywood v. Halifax County Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495

(1990). Clear and convincing evidence proved that mother had failed, without good cause,

within a reasonable time not to exceed twelve months from when L.C., K.C., A.A., and Ky.C.

were placed in foster care, to substantially remedy the conditions which led to their removal from

her care and that the termination of mother’s residual parental rights as to each of those four

children was in their best interests.

       Nothing in the record suggests that ADHS did not provide mother with reasonable and

appropriate services to assist her in reunifying with her children or that continued services would

alleviate her deficits. The testimony before the trial court was to the contrary and showed that

ADHS had assisted mother for close to three years by providing financial assistance to pay for

her past due gas bill, clothing, food, and daycare; individual counseling for mother and several of

the children; intensive home-based services to address parenting, nutrition, and budgeting issues;

payment for mother to live at the ALIVE shelter with A.A. and Ky.C. for a trial period until

mother was evicted; extensive advocacy to assist mother in obtaining a Section 8 housing

voucher; and psychological evaluations of mother and Beatty to determine the most effective

way to assist mother and her children. Yet, clear and convincing evidence established that

mother had not progressed to the point where she possessed appropriate parenting skills to

address the needs of each specific child or that she would be able to provide them a safe, stable

home environment, as a group or individually. See Jenkins v. Winchester Dep’t of Soc. Servs.,

                                                -8-
12 Va. App. 1178, 1183, 409 S.E.2d 16, 19 (1991) (finding that, despite the efforts made by the

mother to meet the goals set out by the foster care plan, the mother “had not progressed to a point

where she was capable of functioning as an independent parent”). Moreover, all four children

were doing well in their current placements.

       Accordingly, we cannot say the trial court’s decision terminating mother’s residual

parental rights to L.C., K.C., A.A., and Ky.C. under Code § 16.1-283(C)(2) was plainly wrong or

without evidence to support it.

                                                                                        Affirmed.




                                               -9-
