                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bumgardner and Clements
Argued at Richmond, Virginia


MARY AGNES JOSEPH TERRY
                                          MEMORANDUM OPINION * BY
v.   Record No. 3322-01-2                  JUDGE LARRY G. ELDER
                                             JUNE 18, 2002
RICHMOND DEPARTMENT OF
 SOCIAL SERVICES


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                   Melvin R. Hughes, Jr., Judge

          Robert P. Dickinson for appellant.

          Kate O'Leary, Assistant City Attorney
          (Evelyn B. Meese, Assistant City Attorney;
          Jack M. Fulton, Guardian ad litem for the
          infant children; Office of the City Attorney,
          on brief), for appellee.


     Mary Agnes Joseph Terry (appellant) appeals from a decision

terminating her residual parental rights to her two daughters,

C. and D., under Code § 16.1-283(C)(2).   On appeal, she contends

the termination was erroneous both (1) because the Richmond

Department of Social Services (RDSS) failed to offer her the

services required by Code § 16.1-283(C)(2), and (2) because the

evidence was insufficient to prove that appellant, without good

cause, failed to substantially remedy the conditions that

resulted in the placement of the children in foster care.    We


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
hold the evidence was sufficient to prove both that RDSS offered

appellant the services necessary to help her remedy the

conditions that resulted in the placement and continuation of

the children in foster care and that appellant failed, without

good cause, to substantially remedy the conditions which caused

that continuation.   Thus, we affirm the involuntary termination

of appellant's parental rights to C. and D.

     "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).

Subsection (C)(2), the subsection under which the trial court

terminated appellant's parental rights in this case, requires

proof, by clear and convincing evidence, (1) that the

termination is in the best interests of the child, (2) that

"reasonable and appropriate" services have been offered to help

the parent "substantially remedy the conditions which led to or

required continuation of the child's foster care placement," and

(3) that, despite those services, the parent has failed,

"without good cause," to remedy those conditions. 1   Clear and

convincing evidence is "'that measure or degree of proof which

will produce in the mind of the trier of facts a firm belief or

conviction as to the allegations sought to be established.'"


     1
       Appellant does not contest the sufficiency of the evidence
to prove that termination was in the best interests of C. and D.



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Martin v. Pittsylvania County Dep't of Soc. Servs., 3 Va. App.

15, 21, 348 S.E.2d 13, 16 (1986) (quoting Gifford v. Dennis, 230

Va. 193, 198 n.1, 353 S.E.2d 371, 373 n.1 (1985)).

     We view the evidence in the light most favorable to the

party prevailing below and grant to that evidence all reasonable

inferences fairly deducible therefrom.   Logan v. Fairfax County

Dep't of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463

(1991).   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), but we "'presume[]

[the trial court has] thoroughly weighed all the evidence [and]

considered the statutory requirements,'" Logan, 13 Va. App. at

128, 409 S.E.2d at 463 (quoting Farley v. Farley, 9 Va. App.

326, 329, 387 S.E.2d 794, 796 (1990)).

     The evidence in the record, viewed in the light most

favorable to RDSS, proved, by clear and convincing evidence,

both (1) that RDSS made "reasonable and appropriate efforts" to

help appellant remedy the conditions "which led to or required

continuation of the child[ren]'s foster care placement" and (2)

that appellant, without good cause, failed "to substantially

remedy" those conditions.   In reaching this conclusion, the

court was required by Code § 16.1-283(C)(2) to "take into

consideration the prior efforts of such agencies to rehabilitate

the parent."

                               - 3 -
     The evidence established that RDSS had been working with

appellant since 1994, when she inadequately supervised her

ten-month-old baby, C.   C. narrowly avoided drowning when she

fell head-first into a bucket of water and detergent, and she

suffered permanent developmental delays as a result.   RDSS took

C. into custody at that time.   When appellant was incarcerated

on criminal neglect charges stemming from C.'s injuries, she

signed an entrustment agreement placing her one-month-old

daughter D. in the custody of RDSS, as well.   An evaluation of

appellant conducted by Licensed Clinical Psychologist Beverly

Chamblin after C.'s near drowning revealed that appellant was

mildly mentally retarded with an IQ of 60, had "no indication of

higher potential," and required long-term services in the home

for parenting and household management.

     Based on Dr. Chamblin's recommendations and case worker

Rosalyn Johnson's observations, RDSS provided appellant with

help in performing routine personal hygiene and household

chores.   RDSS also attempted to find assistance for appellant in

managing her affairs and raising her children.   Although RDSS

arranged for appellant to live with a relative in New York or

enter a residential placement program in Richmond, appellant

declined to move to New York and disqualified herself from

participating in the residential program in Richmond when she

chose to get married instead.   RDSS recommended the children be

placed for adoption, but when a court disapproved of that

                                - 4 -
recommendation, RDSS was forced to attempt to return the

children to appellant.   Johnson testified that she had already

referred appellant to mental retardation services as well as

in-home services, thereby exhausting all avenues at her disposal

for "improv[ing] [appellant's] functioning."    Johnson referred

appellant to RDSS's stabilization services, and appellant

continued to receive in-home services.   RDSS approved returning

the children to appellant's home on a trial basis, and six

months later, appellant regained legal custody.   Appellant

stipulated that RDSS provided her with "excellent services"

between April 1994 and March 1997.

     Prior to the return of C. and D. to appellant's home in

1997, appellant was charged with criminal neglect of A., her

niece, who was severely burned in hot water while under

appellant's care.    In 1999, appellant violated a condition of

her probation on that charge when she refused to attend

parenting classes, and RDSS was forced to resume custody of C.

and D. when appellant was incarcerated on the probation

violation.   Appellant made arrangements to leave C. and D. with

a male friend, but appellant left the children without legal

guardianship, and her male friend was unable to care for the

children properly.   Once the children came back into the custody

of RDSS, it was discovered that at least one of them had been

sexually abused while in appellant's custody.



                                - 5 -
     We recognize that it was appellant's second incarceration,

at least in part, which "led to" the children's second foster

care placement and that incarceration alone is insufficient

grounds for terminating one's parental rights.   See, e.g., Cain

v. Roanoke Dep't of Soc. Servs., 12 Va. App. 42, 44, 402 S.E.2d

682, 683 (1991).   Here, however, more than appellant's 1999

incarceration "required continuation of the child[ren]'s foster

care placement."   Code § 16.1-283(C)(2) (emphasis added).

Appellant's incarceration merely brought to the attention of

RDSS other facts which, when viewed in light of appellant's

history with RDSS, "required [that] continuation."    Id.; see

Harris v. Lynchburg Div. of Soc. Servs., 223 Va. 235, 242, 288

S.E.2d 410, 413 (1982) (holding that mother's four-year history

of neglectful treatment prior to her incarceration permitted

termination of her parental rights while she was in prison).

     First, the reason behind appellant's incarceration, her

failure to take parenting classes as a condition of probation

following her conviction for neglecting her niece, A., related

directly to appellant's ability to parent C. and D.   Second,

appellant failed to provide adequately for the children's

well-being during her incarceration both because the person to

whom she entrusted them was unable to care for them and because

she failed to provide for the children's legal guardianship.

Third, the fact that one or both of the children had been

sexually abused while in appellant's custody indicated that

                               - 6 -
appellant had failed to keep them safe prior to her

incarceration.      Fourth, the evidence established that

appellant's children had special needs and that appellant

required ongoing assistance to parent them effectively and

maintain a household.

        The evidence, viewed in the light most favorable to RDSS,

established that it made "reasonable and appropriate efforts" to

help appellant remedy the conditions which both "led to" and

"required continuation of" the girls' foster care placement in

1999.       Code § 16.1-283(C)(2).   A repeat psychological evaluation

performed in 2000 indicated that appellant's intellectual and

functional abilities had not improved since her last testing in

1994, and on the recommendation of Dr. Chamblin, the evaluating

psychologist, RDSS attempted to reinstitute the services which

had allowed appellant to improve her functioning and regain

custody in 1997.      However, Dr. Chamblin opined that, whereas

appellant had been "accepting of supervision" and receptive to

training in 1994, appellant was more "defensive and guarded" in

2000.

        In keeping with Dr. Chamblin's analysis, the evidence

established that appellant declined almost all services offered

by RDSS following her release from jail in late 1999 or early

2000. 2     After appellant underwent the psychological evaluation in


        2
       The only services appellant accessed were
employment-related, and the evidence established that appellant

                                     - 7 -
June 2000, RDSS, through the Richmond Behavioral Health

Authority (RBHA), "offered services to [appellant,] and she

declined because she felt she did not need any.    RBHA was

offering daily in-home support services such as money

management/payee assistance, parenting skills and mental

retardation services."   RDSS filed a foster care plan with a

goal of adoption in July 2000 because no relatives suitable for

placement had been found, appellant was unable to parent

successfully without supervision, and appellant had not accessed

the services that were offered to her.   Despite the possibility

of the termination of her parental rights, appellant did not

access any in-home services prior to the district court

termination hearing in March 2001.

     The evidence appellant offered showing payment of $205 to

the "City of Richmond, Collection Division," for water tended to

indicate appellant was still having trouble managing her

finances.   As case worker Shannon Crone testified, appellant

received social security disability benefits, and appellant's

ongoing difficulty in paying her bills "was never [a question

of] her [not] having enough . . . money . . . ."   As of the

circuit court hearing in September 2001, appellant testified


worked only sporadically. We do not, however, consider
appellant's employment status to be of great importance to the
termination of her parental rights. Although case worker Davis
testified appellant was referred for assistance in maintaining
employment, this was not listed as a requirement in the
applicable foster care plans.

                               - 8 -
merely that she was "[i]n the process" of obtaining mental

retardation services from RBHA, services she had failed to

access for over a year.

     Thus, the evidence established that RDSS, through RBHA,

offered appellant all services it thought necessary to permit

her to regain custody but that she declined almost all of those

services.    RDSS was not required "to force its services upon an

unwilling or uninterested parent."      Harris, 223 Va. at 243, 288

S.E.2d at 415.   Further, the failure of RDSS or RBHA to ask

appellant to participate in the children's counseling was not

dispositive.   No evidence established that such participation

would be beneficial to appellant or her daughters in remedying

the conditions requiring foster care placement.     Further,

Dr. Chamblin opined that appellant would not benefit personally

from psychotherapy.   Finally, as outlined above, RDSS and RBHA

offered appellant a variety of other services which she failed

to access.

     Additional evidence established that appellant was not able

to keep her children safe or to parent them effectively without

the assistance offered her.   When appellant was released from

jail in late 1999 or early 2000, she initially maintained close

contact with her children, and regular visits "were going well."

However, when case worker Kelly Davis allowed an overnight visit

in appellant's home, appellant again demonstrated her inability

properly to supervise and protect her children.     Appellant left

                                - 9 -
the girls with her boyfriend while she went to work, and

appellant's boyfriend sexually abused C. and threatened D.      C.

"said she tried to tell her mother, [appellant,] but [appellant]

would not listen to [C.]."   As a result of that incident,

appellant's subsequent visits were to be supervised.

     When a new case worker, Shannon Crone, permitted appellant

an unsupervised visit with the children to take them to a

Christmas parade, appellant violated Crone's specific

instruction that "it was just to be [appellant] and the girls."

In violating that instruction, appellant allowed the girls to be

in the presence of D.'s father, Robert Terry, who was alleged to

have sexually abused D. previously.    Appellant's supervised

visits with the girls were sporadic after that, from January to

March 2001.   When appellant notified Crone in late February 2001

that she would be working on Saturdays and requested a different

visitation schedule be established, Crone attempted to contact

appellant, but appellant "never returned" Crone's call to

arrange visitation.

     Other evidence established that the girls had special needs

and that appellant required ongoing assistance to parent them.

C. was an "extremely hyperactive" child with "borderline mental

retardation," and C. required "[c]onsiderably more" supervision

than the average child "just in regards to safety."    The

evidence also established that C. and D., victims of sexual

abuse, exhibited "sexualized behavior" that required a "higher

                              - 10 -
level" of parenting skills than required by the average child.

Finally, C.'s therapist testified that C. and D. together

exhibited "distractibility . . . the most extreme [she had] ever

seen" in twelve years of practice.     Dr. Chamblin testified that

appellant required ongoing assistance to parent the children,

and even appellant's expert, social worker Dan Jacobson, agreed

appellant would require ongoing assistance in "[a]dapting to

providing [for] the changing needs of an adolescent . . . who

has been sexually abused."   Appellant, on the other hand,

testified that she no longer needed any help parenting her

children, a conclusion clearly belied by the evidence.

     This case, as presented on appeal, is not one in which the

parent's mental deficiency, standing alone, rendered the parent

"unable," "without good cause," to "substantially remedy" the

conditions requiring foster care placement.    Code

§ 16.1-283(C)(2) (emphasis added); see Richmond Dep't of Soc.

Servs. v. L.P., 35 Va. App. 573, 582-85, 546 S.E.2d 749, 753-55

(2001) (holding that severe and likely permanent mental

deficiency which prevented parent from caring for child did not

constitute good cause preventing court from terminating parental

rights under Code § 16.1-283(C)(2)).    Although appellant's

children had special needs and appellant's disability clearly

had a negative impact on her ability to care for them, the

evidence established that the termination of appellant's

parental rights resulted from her "unwilling[ness]" to recognize

                              - 11 -
her limitations and to accept the services and guidance offered

by RDSS to help her "substantially remedy the conditions which

led to or required continuation of the child[ren]'s foster care

placement."   Code § 16.1-283(C)(2) (emphasis added).    As

Dr. Chamblin testified, "Many people with an IQ of 60[,

appellant's IQ,] function very, very well . . . .     There are two

issues:    The intellectual function, and how the person uses it."

     In summary, the evidence established that RDSS offered

appellant a panoply of services designed to assist her in

regaining custody of her children.      Appellant declined the bulk

of those services until her parental rights had already been

terminated by the district court, and she showed a continuing

inability to protect her children.      The evidence, viewed in the

light most favorable to the RDSS, established that her children

had special needs which a parent of normal intellectual function

would have difficulty meeting and that appellant could not hope

to parent adequately without the assistance she repeatedly had

refused.   Thus, the evidence supported the drastic action of

terminating her parental rights to C. and D. pursuant to Code

§ 16.1-283(C)(2), and we affirm the ruling of the trial court.

                                                              Affirmed.




                               - 12 -
