                                                                      COURT OF APPEALS OF VIRGINIA


              Present: Judges Alston, Chafin and Senior Judge Haley
              Argued at Fredericksburg, Virginia
UNPUBLISHED




              YEILY SANDOVAL RIOS
                                                                                           MEMORANDUM OPINION BY
              v.            Record No. 0385-16-4                                           JUDGE ROSSIE D. ALSTON, JR.
                                                                                               DECEMBER 19, 2017
              FAIRFAX COUNTY DEPARTMENT
               OF FAMILY SERVICES


                                                    FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                                               Brett A. Kassabian, Judge

                                           (John B. Jacob, Jr., on brief), for appellant. Appellant submitting
                                           on brief.

                                           (Elizabeth D. Teare, County Attorney; Karen L. Gibbons, Deputy
                                           County Attorney; Donna R. Banks, Assistant County Attorney;
                                           Nancy J. Branigan Martin, Guardian ad litem for the minor child,
                                           on brief), for appellee. Appellee and Guardian ad litem submitting
                                           on brief.
               
               
                            Yeily Sandoval Rios (appellant) appeals the termination of her parental rights over her

              daughter, J. She contends that the trial court erred in ruling that she did not substantially remedy

              the conditions which led J. to be placed in and remain in foster care. Appellant specifically

              argues that the trial court reached this determination without clear and convincing evidence as

              required by Code § 16.1-283(C)(2).

                                                                             BACKGROUND

                            J. was placed under the care of Fairfax County Department of Family Services

              (Department) pursuant to an emergency removal order. The Department noted in the supporting

              affidavit that appellant was adjudicated as having abused or neglected her eldest children, Jo. and

                                                                          
                            
                                Pursuant to Code § 17.1-413, this opinion is not designated for publication.
L., ages three and two respectively. The juvenile and domestic relations district (J&DR) court

considered the facts contained within the affidavit and subsequently entered the order. At the

preliminary removal hearing, the Department examined several of its employees and offered the

supporting affidavit as evidence. The J&DR court found that J. was to remain in the

Department’s care because, otherwise, she “would be subject to an imminent threat to life or

health to the extent that severe or irremediable injury would be likely to result if [she] were

returned to or left in the custody of . . . her parents.” The J&DR court further ordered appellant

to

               participate in a psychological evaluation; continue to follow
               through with any services previously ordered by the Department
               concerning the siblings of [J.; which included] . . . having [and
               continuing] supervised visits with the children[,] . . . arriving [at]
               . . . the visits and medical appointments for the children[ on time,
               scheduling prenatal care for J.,] sign[ing] releases[,] notify[ing]
               the Department of any changes in their address or phone number
               within 24 hours, . . . [and] provid[ing] the Department with the
               names and addresses of family members [and] extended family
               members who could possibly be a resource for the child.

The Department expressed concerns regarding the uncertain paternity of J., appellant’s unstable

housing situation, her lack of preparation for J.’s birth, and her overall inability to parent. These

were the circumstances that originally caused J. to be placed in foster care. Appellant objected to

the J&DR court entering a finding of abuse and neglect, so an adjudicatory hearing was

scheduled.

       At the adjudicatory hearing, the J&DR court found that J. was either “at risk of being [or

was] abused or neglected by a parent . . . who has been adjudicated as having abused or

neglected another child in the care of the parent.” The J&DR court by order re-entered the

remedial requirements necessary for appellant to be reunited with her children. A dispositional

hearing and foster care hearing were scheduled. The Department submitted its foster care plan;

its primary goal for J. was return home with a concurrent goal of relative placement. The J&DR
                                                -2-
court approved the plan. At the foster care review hearing, the J&DR court approved those same

goals “because the Department was providing services to appellant which would hopefully

improve conditions [that] caus[ed] J. to be placed in foster care.”

        After appellant did not substantially remedy those conditions, the Department

simultaneously filed a petition to set a permanency planning hearing and initiated proceedings to

terminate appellant’s parental rights. At the permanency planning hearing, the Department

submitted a new foster care plan, changing its goals from return home and relative placement to

adoption. The Department explained this change by referencing their “mandate as foster care

workers to achieve permanency for children in a period not to exceed 12 months.” The J&DR

court approved the new plan and terminated appellant’s parental rights over J. as being “in the

best interest of the child.”

        Appellant appealed to the circuit court (“trial court”).

        At trial, the Department’s witnesses testified to appellant’s efforts to remedy conditions

placing J. in foster care. Those conditions are that appellant: undergo a psychological

evaluation, attend visitation and medical appointments in a timely fashion, provide prenatal care

for J., sign releases, notify the Department of changes in address or phone number within 24

hours, and submit names and addresses of family members who were interested in providing J.

care. Appellant did complete her psychological evaluation with Dr. Gloria Morote. Dr. Morote

found that appellant had “modest or limited cognitive abilities[,]” a “low or deficient” attention

span and working memory, and challenges with processing information and complex reasoning.

Dr. Morote posited that this affected appellant’s ability to parent because appellant would have

issues in “safe planning,” “planning ahead,” and “organizing her day to meet demands for her

children.” She subsequently recommended that appellant receive case monitoring and

home-based services from the Department.

                                                 -3-
       Regarding visitation and medical appointments, appellant was not compliant. She

frequently arrived late or missed scheduled visitation citing transportation issues as an excuse.

Regarding medical appointments, appellant also arrived late or missed appointments. One

Department employee testified that prior to J.’s birth, appellant “could not even get the children

to doctors’ appointments that [the employee] made for her and . . . brought her to.” Appellant

was not properly prepared for appointments she did attend. Appellant did not provide car seats,

diapers, or extra clothes for the children when transporting them to their medical appointments.

In one instance, L. “urinated . . . so much that it was coming out of her diaper.” Appellant “did

not have clothes, diapers-anything-for L[.]” The children’s teachers even reported to the

Department that they arrived to school without the proper supplies.

       After confirming that appellant was pregnant again, the Department recommended that

she schedule prenatal appointments. Appellant failed to do so even after being reminded, so a

Department employee scheduled appointments and coordinated transportation for appellant.

Appellant arrived late or missed those appointments. At one appointment, appellant forgot photo

identification, but a Department employee convinced the clinic to see her regardless. At another

appointment, thirty minutes before she was scheduled to be seen, appellant notified a Department

employee that she was at a different location and requested that the cab pick her up at a new

address. The cab company ultimately did transport appellant to the clinic, but appellant missed

her appointment due to her tardiness. While appellant “always expressed an intent to follow

through[, she] seemed very overwhelmed.” The evidence did establish however that after having

missed thirty-six percent of the appointments scheduled for her eldest children and most of J.’s

prenatal appointments, appellant never missed an appointment made for J. after J.’s birth. A

Department employee testified that appellant did not appreciate the seriousness of her “lack of

follow through” on her children’s well-being.

                                                -4-
              Appellant failed to sign releases as required.

              Appellant did not inform the Department of changes in address or phone number within

the designated 24-hour window.

              Appellant was to provide the Department with contact information of individuals who

could care for J. Appellant asked that J. be placed with the Sandovals if the goal of return home

was not feasible.1 The Sandovals were not a viable option because that couple was previously

the eldest children’s “safety monitors,” and yet they were “not able to provide [proper] care to

the [eldest] children and follow through with the safety plan.” Appellant’s mother also

expressed a desire to care for J. but withdrew her interest.

              The Department offered additional services to appellant: a parenting class and individual

domestic violence counseling. While appellant did enroll in a parenting class, she did not

graduate from the course because she did not attend eighty percent of the scheduled classes.

Even when appellant did attend, she did not participate. On cross-examination, it was noted that

appellant attended 13 of 18 sessions. Because of some history pertaining to her home

environment, the Department recommended that appellant attend domestic violence counseling.

Appellant had been and was currently involved with men who were domestic abusers. Juan

Canales (Canales), the biological father of her eldest children, Jo. and L., was physically,

emotionally, and verbally abusive. In interviews, appellant said Canales was controlling, “made

all the decisions,” and dishonored promises to transport the children to their appointments. After

leaving Canales for the second time, appellant began seeing Fernando Lopez (Lopez), J.’s

biological father. Appellant continued seeing Lopez even after he engaged in a physical

altercation with appellant’s male colleague, resulting in appellant being fired from her job.

Another report noted that Lopez was a drug dealer and “a violent person.” In addition, Lopez

                                                            
              1
                  Ms. Sandoval, Juan Canales’ sister, is married to appellant’s father.
                                                        -5-
made statements to a Department employee that he grabbed appellant “roughly about the

shoulders” during a heated argument in the presence of a child. While appellant did initially

attend counseling sessions, she failed to appear for subsequent scheduled sessions.

       The Department also recommended that appellant remedy their additional concerns.

Those were the uncertain paternity of J., appellant’s housing situation, appellant’s lack of

preparation for J., and appellant’s parenting skills. Appellant could not state with certainty who

J.’s father was. Canales completed a paternity test and was determined not to be J.’s father.

Appellant informed a Department employee that J.’s father may possibly be Lopez. The

Department attempted to get Lopez to submit to a paternity test over the course of several

months. Lopez ultimately complied, and it was established that he was J.’s biological father.

The Department indicated that J. did not have a safe and stable home environment. Due to her

turbulent relationships, appellant’s living situation was constantly in flux. She moved to six

different residences since the spring of 2014. It was often the case that several other adults lived

in these dwellings. The Department required that individuals living with or caring for J. submit

completed background checks. Appellant was reminded of this at least six times, but she failed

to submit the necessary documentation. One of the locations was unsuitable to raise a child

because painting and cleaning supplies and equipment lined the living room. In evaluating these

living arrangements, Department employees noted that appellant had done very little to prepare

for J.’s long-term care. The extent of her preparations included purchasing a bassinet that J.

would outgrow within weeks. Appellant failed to develop a plan of care for J. if J. were to return

home. This was particularly important because appellant and her current significant other,

Lopez, worked overnight; most daycares do not operate at night.

       In addition, appellant was required to improve her parenting skills. Prior to J.’s birth,

“the [eldest] children were all over the place,” and appellant had “a tough time keeping up with

                                                -6-
them.” Appellant frequently forgot to keep the children in her line of sight, causing Department

employees to prompt proper parenting behaviors. On one occasion, Jo. defecated himself, and

appellant did not notice until a Department employee made appellant aware of it. Appellant then

put both Jo. and L. “into the bathtub but left them there [unattended,] and then went to the

hallway to clean up the mess.” After J. was born, appellant was still “[unable] to maintain

appropriate supervision” over all three children. Appellant continued to require prompts to

watch the children and was told to put J. in her high chair while appellant was otherwise

occupied. One employee noted that appellant would strap J. in her car seat in the living room.

Then, appellant would exit the room to prepare lunch for the other children, “leaving J. in danger

of being stepped on.” In another visit, appellant placed J. on the couch but did not properly

secure her. Upon hearing that her older children were hungry, appellant rose from the couch to

ready their lunch. J. then fell three-to-four feet onto the uncarpeted floor, sustaining a bump to

her forehead. According to the testimony presented, appellant “makes progress in the moment[,]

. . . but the struggle is when you return the following week or the next time, we seem to be back

at square one.” Although appellant is a “loving and caring mom,” several witnesses testified that

they did not see any improvement in appellant’s parenting.

        One Department employee specifically testified to the circumstances confronting J.,

stating that J. is a “very sweet little girl” who is curious, social, and interested in her older

siblings. “She very rarely cries except for when she really needs something . . . and is sleeping

through the night.” Initially, it was believed that J. was behind in her development, but

ultimately, J. has no medical conditions requiring special treatment, unlike her older siblings.

Even so, appellant “struggles in caring for children with even basic needs.” For example, all

children need dental care. When appellant’s eldest children came into the Department’s care,

they had “severe dental decay,” and both children ended up requiring dental procedures.

                                                  -7-
       During cross-examination, it was revealed that appellant was employed, elected to enroll

in an additional parenting class, and completed some court-ordered services.

       Appellant presented no direct evidence.

       The trial court approved the Department’s goal of adoption and “reluctantly” ordered the

termination of appellant’s parental rights over J. “because . . . this case is not about whether or

not the [appellant] loves her child[,] . . . [it] is not about an unwillingness to substantially remedy

[the conditions under Code § 16.1-283(C)(2),] . . . [it] is[ not] about poverty, and it[ is] not about

a cognitive defect.” The trial court ultimately ruled that there was “little, if any, and certainly not

substantial remedy of the conditions that existed at the time the child was placed in foster care.”

Appellant objected to the trial court’s findings.

       This appeal followed. Appellant argues that the trial court erred in terminating her

parental rights. She specifically contends that the trial court ruled that appellant had not

substantially remedied conditions placing J. in foster care without meeting the clear and

convincing evidentiary standard as required by Code § 16.1-283(C)(2). We disagree.

                                             ANALYSIS

       “When reviewing a termination of a parent’s residual parental rights, it would be unfitting

to not acknowledge that ‘[t]he termination of parental rights is a grave, drastic[,] and irreversible

action.’” Farrell v. Warren Cty. Dep’t of Soc. Servs., 59 Va. App. 375, 400, 719 S.E.2d 329, 341

(2012) (quoting Helen W. v. Fairfax Cty. Dep’t of Human Dev., 12 Va. App. 877, 883, 407

S.E.2d 25, 28-29 (1991)). “The effect of an order terminating parental rights is to permanently

sever the relationship between a child and her natural parent and to ‘render the parent a legal

stranger to the child.’” Edwards v. Cty. of Arlington, 5 Va. App. 294, 305, 361 S.E.2d 644, 650

(1987) (quoting Shank v. Dep’t of Soc. Servs., 217 Va. 506, 509, 230 S.E.2d 454, 457 (1976)).




                                                 -8-
        “We view the evidence in the ‘light most favorable’ to the prevailing party in the [trial]

court and grant to that party the benefit of ‘all reasonable inferences fairly deducible therefrom.’”

Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 262, 616 S.E.2d 765, 769 (2005)

(quoting Fields v. Dinwiddie Cty. Dep’t of Soc. Servs., 46 Va. App. 1, 7, 614 S.E.2d 656, 659

(2005)). “In its capacity as factfinder . . . the [trial] court retains ‘broad discretion in making the

decisions necessary to guard and to foster a child’s best interests.’” Id. at 266, 616 S.E.2d at 769

(quoting Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)). “On review, ‘a

trial court is presumed to have thoroughly weighed all the evidence, considered the statutory

requirements, and made its determination based on the child’s best interests.’” Fields, 46

Va. App. at 8, 614 S.E.2d at 659 (quoting Farley, 9 Va. App. at 329, 387 S.E.2d at 796). The

trial court’s determinations “when based on evidence heard ore tenus . . . will not be disturbed on

appeal unless it was plainly wrong or without supporting evidence.” Logan v. Fairfax Cty. Dep’t

of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991) (quoting Peple v. Peple, 5

Va. App. 414, 422, 364 S.E.2d 232, 237 (1988)).

        Pursuant to Code § 16.1-283(C)(2), a court may terminate parental rights if

                the [trial] 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 of time not to exceed 12 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.

(Emphasis added).

        To terminate parental rights “a trial [court] must make two separate inquiries . . . . The

first prong is to determine the child’s best interests. The second prong relates to the parent’s . . .

remedying of the conditions that led to foster care . . . which is determined by reference to a

particular time frame.” Richmond Dep’t of Soc. Servs. v. Crawley, 47 Va. App. 572, 579, 625
                                                 -9-
S.E.2d 670, 673 (2006). “[T]he paramount consideration of a trial court [in this determination] is

the child’s best interest.” Akers v. Fauquier Cty. Dep’t of Soc. Servs., 44 Va. App. 247, 262,

604 S.E.2d 737, 744 (2004) (quoting Logan, 13 Va. App. at 128, 409 S.E.2d at 463). When

conducting the best interest analysis, several factors are considered, including

                the age and physical and mental condition of the . . . child[], the
                age and physical and mental condition of the parents; the
                relationship existing between each parent and each child; the needs
                of the . . . child[]; the role which each parent has played, and will
                play in the future, in the upbringing and care of the . . . child[], and
                such other [necessary] factors.

Crawley, 47 Va. App. at 579-80, 625 S.E.2d at 673-74 (quoting Barkey v. Commonwealth, 2

Va. App. 662, 668, 347 S.E.2d 188, 191 (1986)). Turning to the second prong of the inquiry, a

time frame exists to “protect[] the family unit and attendant rights of both parents and child,

while assuring resolution of the parent/child relationship without interminable delay.” Lecky v.

Reed, 20 Va. App. 306, 312, 456 S.E.2d 538, 540 (1995). Clear and convincing is the

evidentiary standard required “because ‘the rights of parents may not be lightly severed.’”

Toms, 46 Va. App. at 266, 616 S.E.2d at 770 (quoting M.G. v. Albemarle Cty. Dep’t of Soc.

Servs., 41 Va. App. 170, 187, 583 S.E.2d 761, 769 (2003)).

        We view the evidence in the light most favorable to the Department, the prevailing party

at the trial court. Id. at 262, 616 S.E.2d at 769 (citing Fields, 46 Va. App. at 7, 614 S.E.2d at

659). So viewed, we find that the trial court did not err when it terminated appellant’s parental

rights pursuant to Code § 16.1-283(C)(2).

                          I. Termination is in the best interest of the child.

        In review on appeal as to whether termination of parental rights is appropriate, we first

consider whether it is in a child’s best interest. It is not in J.’s best interest for her to be returned

to appellant’s care for several reasons. Although appellant loves J., appellant has not and cannot



                                                  - 10 -
provide J. the care she needs, has not improved her parenting, and has not provided a safe and

stable home for J.

        J. is a “very sweet little girl” who is curious, social, and interested in her older siblings.

“She very rarely cries except for when she really needs something[,] . . . and is sleeping through

the night.” J. has no medical conditions or developmental issues requiring special attention.

Regardless, appellant “struggles in caring for children with even basic needs.” For example, all

children require dental care; upon being placed in the Department’s care, appellant’s eldest

children suffered from severe dental issues. In addition, appellant did not provide adequate

prenatal care for J. Appellant either missed or arrived late to scheduled appointments. Appellant

has not prepared for J.’s return home, and while appellant has found employment, she has not

crafted a long-term care plan for J. This is significant because both appellant and Lopez work at

night, and most daycares do not provide nighttime care. Appellant has not improved her

parenting over the past several years. Appellant has trouble supervising her three children and

requires frequent prompts to act appropriately. Finally, appellant continued relationships with

domestic abusers. And due to appellant’s turbulent romantic affairs, appellant’s housing

situation has constantly been in flux. It is unclear where appellant will raise J. if J. is returned to

her care. Several locations where appellant has lived since the spring of 2014 are unsuitable

because other adults living in those dwellings did not submit the requisite background checks

and one poses an additional danger to J. because painting and cleaning supplies lined the living

room walls.

                      II. Appellant failed to substantially remedy conditions.

        The following conditions caused J. to be placed in foster care: appellant

                [was] not able to follow through with the services that were
                recommended by the Department, which included visitation with
                the other children, psychiatric evaluations, [attending the
                children’s] medical appointments, [providing prenatal care for J.,
                                                 - 11 -
               signing releases, informing the Department of changes in address,
               providing names of those interested in caring for J., participating in
               a parenting class, and undergoing individual counseling], in
               addition to the unknown [paternity of J.], [appellant’s] overall
               inability to parent this child[, appellant’s uncertain housing
               situation, and appellant’s lack of preparation] for the child.

       While appellant underwent a psychiatric evaluation, she did not follow through with

attending visitation and medical appointments in a timely manner, did not complete the

recommended parenting class, and did not provide prenatal care for J. Appellant was

consistently late or missed scheduled visitation due to transportation issues. Regarding her

children’s medical appointments, appellant arrived late or missed appointments for the same

reasons. Appellant failed to appreciate the significance of missing or arriving late to

appointments on her children’s well-being. Appellant was unprepared for appointments she was

able to attend-she did not bring necessary supplies for the children like diapers or car seats. In

one instance, while travelling to an appointment prior to J.’s birth, L. urinated through her diaper.

Appellant did not have any additional diapers or a change of clothes for L. While the

Department was attempting to assist appellant in remedying the conditions placing the children

in jeopardy, appellant became pregnant again, and the Department encouraged prenatal care.

Appellant did not schedule any appointments; therefore, Department employees scheduled

appointments on appellant’s behalf. Appellant arrived late and was not seen at one of these

appointments, and at another, while appellant did not bring proper identification, ultimately a

Department employee convinced the clinic to see her. Appellant also failed to sign releases and

did not inform the Department when her address or phone number changed within 24 hours.

Regarding the parenting class, appellant did not graduate from the course because she did not

meet the eighty percent attendance bench-mark. While close to achieving the attendance

requirement, appellant did not engage in the classes she did attend.



                                               - 12 -
       Determining the paternity of J. was problematic for the Department. Appellant did not

know who J.’s father was. After a paternity test established Canales was not the father, appellant

informed Department employees that Lopez could possibly be J.’s father. Over several months,

the Department attempted to get Lopez to submit to a paternity test. He eventually complied;

Lopez was determined to be J.’s father.

       Appellant did not create a stable and safe environment for J. Due to her past, appellant

was directed to complete domestic violence counseling. Appellant did initially see her counselor

but did not attend subsequent scheduled counseling sessions. Appellant was still romantically

involved with and lived with a domestic abuser, Lopez. As a result of her turbulent

relationships, appellant changed residences constantly; she moved to six different locations since

the spring of 2014. In several locations, appellant lived with multiple people. Appellant was

required to submit background checks on individuals caring for or living with J. but did not do so

even though she was reminded six times. And one dwelling was also unsuitable because

painting and cleaning supplies lined the living room walls.

       Appellant had not prepared to care for J. Appellant did not purchase the necessary

supplies to care for a child. The extent of appellant’s preparations for J.’s possible return home

included purchasing a bassinet that J. would quickly outgrow. Even after the Department

changed its goals from return to home and relative placement to adoption and termination of

parental rights, appellant did not establish plans for J.’s long-term care. This was problematic in

light of the fact that appellant and Lopez worked during the nighttime and daycares often do not

provide nighttime care. In addition, relative placement was not possible. The Sandovals and

appellant’s mother expressed interest in caring for J.; neither were appropriate choices. The

Sandovals had been the “safety monitors” for appellant’s eldest children but were unable to




                                               - 13 -
prevent their placement in foster care, and appellant’s mother withdrew her interest after

becoming pregnant.

       Appellant did not improve upon the continuing concerns of her parenting. Department

employees conducting visitations observed appellant’s inability to maintain proper supervision of

all three of her children. On one occasion prior to J.’s birth, appellant was unaware that Jo.

defecated himself until a Department employee informed her. On one occasion after J.’s birth,

appellant left J. strapped in a car seat in the living room, putting her in danger of being stepped

on. Before and after J.’s birth, Department employees frequently prompted proper parenting

behaviors from appellant; those prompts most often included that appellant keep her children in

her line of sight. Department employees commented that they saw no improvement in

appellant’s parenting abilities.

       Appellant attempts to argue that she substantially remedied the conditions placing J. in

foster care by attending 13 of 18 parenting classes, finding employment, enrolling in a parenting

class, and completing some court-ordered services. The trial court did consider those facts and

ultimately ruled that appellant had “certainly not substantial[ly] remed[ied] the conditions that

existed at the time the child was placed in foster care.”

       In its capacity as factfinder, the trial court exercised its broad discretion in making the

decisions necessary to guard and to foster the child’s best interests. The trial court thoroughly

weighed all the evidence, considered the statutory requirements, and supported its determination

with the uncontroverted evidence presented. Thus, the trial court did not err in terminating

appellant’s parental rights under Code § 16.1-283(C)(2).

                                                                                           Affirmed.




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