                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Lemons ∗
Argued at Richmond, Virginia


TIMOTHY ROME BAKER, JR.
                                           MEMORANDUM OPINION ∗∗ BY
v.   Record No. 1089-99-2                  JUDGE DONALD W. LEMONS
                                                MARCH 21, 2000
FREDERICKSBURG DEPARTMENT
 OF SOCIAL SERVICES


          FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
                       John W. Scott, Jr., Judge

             (Donald R. Skinker, on brief), for appellant.
             Appellant submitting on brief.

             Joseph A. Vance, IV (Timothy W. Barbrow;
             Joseph A. Vance, IV & Associates, on brief),
             for appellee.


     Timothy Rome Baker, Jr. appeals the decision of the circuit

court terminating his parental rights to his three children,

Antonio Lewis, Shakela Lewis and Ervin Lewis.       On appeal, Baker

contends that the Fredericksburg Department of Social Services

(DSS) failed to prove by clear and convincing evidence that

Baker is not reasonably likely to correct or eliminate the




     ∗
       Justice Lemons prepared and the Court adopted the opinion
in this case prior to his investiture as a Justice of the
Supreme Court of Virginia.
     ∗∗
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
conditions that resulted in the abuse of his children so as to

allow their safe return to him.   Finding no error, we affirm.

                          I.   BACKGROUND

     Three children were born to Baker and Teresa Lewis:

Antonio in 1989, Shakela in 1991 and Ervin in 1993.   The

evidence revealed that Baker was serving jail time for

possession of cocaine with intent to distribute on February 21,

1996 when DSS intervened because of concerns that the youngest

child had been sexually abused.   Further investigation revealed

that the youngest child was "demonstrating very sexualized

behavior with other children" in his Head Start program, and a

medical examination indicated that he had been sexually abused.

The medical examination showed that the second child had been

sexually abused vaginally and anally.   The oldest child was

characterized as being aggressive, "fail[ing] to comply in the

classroom" and as "a very angry young man."   He was also

described as having "sexualized behaviors" such as "sexual talk"

and "knowledge."

     To prevent removal, Lewis was offered various services,

including homebuilder services, child protective services, a

referral to individual counseling, medication management and a

parenting skills class.   Since Lewis could not assure the

children's safety in her home, however, DSS removed the children

from her custody on October 24, 1996 and placed them into three

separate foster homes.

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        In December of 1996, DSS designed a foster care plan for

Lewis and the children.    The plan called for her to obtain

full-time employment, attend the Fresh Start program, complete

parenting classes, undergo individual counseling and a

psychological evaluation, make her home safe by removing other

adults from the home, secure independent housing and learn how

to provide necessary medications as directed.    The goal of the

plan was for the children to be returned home.

        Baker was released from prison in February of 1997, secured

part-time employment with a landscaping company and moved into a

residence with Lewis.    Although the service plan referred only

to Lewis, Baker appeared in the juvenile court on September 11,

1997, and indicated that he had no objection to the foster care

plan.    In the meantime, Baker had supervised and unsupervised

visitation rights with his children.

        In February of 1998, the goal of the foster care plan was

changed to adoption based on the parents' failure to establish

appropriate housing over the previous one and a half years,

Lewis' inability to protect the children from future abuse,

Baker's failure to complete any item listed in the initial

service plan, the parents' failure to address the issues leading

to the removal of their children, Lewis' inability to set limits

and interact with her children during visits and Baker's

infrequent visits since his release from jail.



                                 - 3 -
     In April of 1998, Baker attended two classes on the

traumatic effects of sexual abuse on children and one counseling

session with a mental health therapist.   Baker attended eight of

the nine weekly basic parenting classes between August 25, 1998

and October 20, 1998.   Georgette Cromartie, the teacher of the

basic parenting classes, testified that Baker's score on a

parenting skills test improved from forty-two percent prior to

the class to seventy percent after completion of the class.     She

also noted, however, that any score less than eighty percent was

not a passing grade and was cause for concern.   During the nine

weeks of classes, Cromartie told her students that anyone not

scoring an eighty percent on the post-test needed to retake the

class, and she testified that the client was responsible for

making the arrangements for taking the class again.    When Baker

received his score, Cromartie told him that she was not finished

working with him.   Baker did not retake the class.

     Mental health therapist Florence Duke provided counseling

to Baker and Lewis but testified that Baker did not undergo any

of the evaluations required under the foster care plans.   Baker

told her that he could not afford to comply with the

requirements.   Dr. Susan Rosebro, the counselor who conducted a

parent competency evaluation of Lewis, testified, however, that

funding was provided for that evaluation and that Baker failed

to contact her.   Furthermore, Baker did not attend the Fresh

Start program as required by DSS's service plan.

                               - 4 -
     DSS had concerns about Baker's ability to provide care and

protection of his children.   Mary Elizabeth McGhee, the

children's counselor since November of 1996, testified that she

would be concerned for their welfare if they were in an

environment of inadequate supervision or structure and that the

children were making progress in their current living

situations.   Cromartie testified that the children needed a safe

and stable environment, and she expressed concern that Baker and

Lewis resided with "someone that they didn't know the name of."

The children's high level of needs further required that their

care provider have a high level of parenting skills and a highly

structured environment, neither of which, in DSS's opinion,

Baker could provide.

     At the February 3, 1999 hearing, Baker was employed full

time with health and dental benefits for the children, but there

was no evidence that stable housing was obtained.    Baker and

Lewis were evicted in September 1998 for nonpayment of rent.     At

the time of the hearing, the couple was renting a bedroom in a

house from a woman and her adult godson.

                 II.   SUFFICIENCY OF THE EVIDENCE

     Pursuant to Code § 16.1-283(B)(2), the parental rights of

parents of abused children may be terminated if the court finds

by clear and convincing evidence that, inter alia, it is not

reasonably likely that the conditions which resulted in the

neglect or abuse can be substantially corrected or eliminated so

                               - 5 -
as to allow the children's safe return to their parents within a

reasonable period of time.    Proof that "[t]he parent or parents,

without good cause, have not responded to or followed through

with appropriate, available and reasonable rehabilitative

efforts on the part of social, medical, mental health or other

rehabilitative agencies designed to reduce, eliminate or prevent

the neglect or abuse" is prima facie evidence of the conditions

set out in Code § 16.1-283(B)(2).    Code § 16.1-283(B)(2)(c).

     "When addressing matters concerning a child, including the

termination of a parent's residual parental rights, the

paramount consideration of a trial court is the child's best

interests."   Logan v. Fairfax County Dep't of Human Dev., 13 Va.

App. 123, 128, 409 S.E.2d 460, 463 (1991).    "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."     Farley v. Farley, 9 Va. App. 326, 328,

387 S.E.2d 794, 795 (1990).    In making its determination, the

trial court must remember that

          the termination of the legal relationship
          between parent and child is a grave
          proceeding. A court order terminating
          parental rights renders the parent "a legal
          stranger to the child" and severs "all
          parental rights." Shank v. Dept. of Social
          Services, 217 Va. 506, 509, 230 S.E.2d 454,
          457 (1976). [The Supreme Court of
          Virginia's] prior decisions clearly indicate
          a respect for the natural bond between
          children and their natural parents. The
          preservation of the family, and in
          particular the parent-child relationship, is

                                 - 6 -
          an important goal for not only the parents
          but also the government itself. While it
          may be occasionally necessary to sever the
          legal relationship between parent and child,
          those circumstances are rare. Statutes
          terminating the legal relationship between
          parent and child should be interpreted
          consistently with the governmental objective
          of preserving, when possible, the
          parent-child relationship.

Weaver v. Roanoke Dept. of Human Res., 220 Va. 921, 926, 265

S.E.2d 692, 695 (1980).

     On appeal, we presume that the trial court "thoroughly

weighed all the evidence, considered the statutory requirements,

and made its determination based on the child's best interests."

Farley, 9 Va. App. at 329, 387 S.E.2d at 796.    We view the

decision in the light most favorable to DSS as the party

prevailing below, and its evidence is afforded all reasonable

inferences fairly deducible therefrom.    See Logan, 13 Va. App.

at 128, 409 S.E.2d at 463.   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. (citation omitted).

     This record clearly demonstrates that the children had

special needs because of their history of abuse and required a

greater amount of supervision.    According to the testimony of

the children's counselor, to meet the needs of all three

children, Baker and Lewis would have to maintain a highly

structured and supervised environment, support and cooperate


                                 - 7 -
with the children's counselors and teachers, support the

children socially, firmly set limits with respect to the

children's behavior, support the children in the area of sexual

development and become involved in school activities.    The goal

of DSS's initial foster care plan was to return the children to

their parents.    Among other requirements, the parents were to

take a parenting skills class, make their home safe for the

children by removing other adults from the home, attend

individual counseling, and obtain full-time employment and

independent housing.

        Although Baker was released from prison in February of

1997, when the foster care plan's goal changed to adoption in

February of 1998, he had not yet complied with any of the plan's

requirements.    While Baker eventually took a sufficient number

of parenting skills classes, the evidence revealed that he

failed to achieve a passing score on the post-test and did not

retake the class when it was made clear to him that he should.

Baker did not undergo any of the evaluations required under the

foster care plans because he claimed that he could not afford

them.    Dr. Rosebro, however, testified that funding was

available.    Neither parent completed the Fresh Start program as

prescribed by the service plan.

        The record also demonstrates that Baker and Lewis were

unable to provide both the necessary support and structured

environment their children need.    The parents failed to address

                                 - 8 -
the issues that led to the removal of their children.    With

respect to Lewis, Dr. Rosebro questioned her ability to protect

her children from future abuse.    Furthermore, Baker visited his

children "on a very limited basis" since his release from

prison.   Finally, although Baker was employed full time when the

hearing occurred, there was no evidence that the parents had

obtained stable housing.    Baker and Lewis had been evicted in

September of 1998 for nonpayment of rent from a home where they

resided with people whom they did not know.    By the February

hearing, Lewis testified that she and Baker rented a bedroom in

the house of an older woman and her adult godson.   Baker and

Lewis did not know the godson.

     Based upon all of the information available to DSS, it was

concerned that the children would not be protected any better on

February 11, 1998 than they had been in October of 1996.    The

children were reported to have made "remarkable" progress in the

foster care system and advancements had been made in the areas

of behavioral modification and sexual behavior and that

heightened parenting skills were necessary to maintain this

progress.   It was further reported that the children continue to

be "high needs" children.   The children's counselor testified

that the children's behavioral problems have improved with

counseling and that their social skills are improving.

     It is noteworthy that Baker does not attack the findings

that the children were neglected and abused.   Nor does he deny

                                 - 9 -
that such neglect and abuse "present[s] a serious and

substantial threat to [their] li[v]e[s], health or development."

Code § 16.1-283(B)(1).   Baker only argues that the proof fails

to show that it is not reasonably likely that the condition that

resulted in the neglect and abuse was not substantially

corrected or eliminated so as to allow their safe return to his

custody.   The evidence clearly and convincingly demonstrates

otherwise.

     Finding no error, the order of the trial court terminating

Baker's parental rights is affirmed.

                                                          Affirmed.




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