                             COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Bumgardner and Frank
Argued by teleconference


NORFOLK DIVISION OF SOCIAL SERVICES

v.     Record No. 0931-03-1

SIMONIA HARDY
                                                                  OPINION BY
LAKIRA SHAMEKA HARDY AND                                 JUDGE ROSEMARIE ANNUNZIATA
LARISSA SHANTA HARDY, BY                                        MARCH 2, 2004
THEIR GUARDIAN AD LITEM

v.     Record No. 0973-03-1

SIMONIA HARDY


                 FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                               Joseph A. Leafe, Judge

               Martha G. Rollins, Deputy City Attorney (Bernard A. Pishko,
               City Attorney, on briefs), for Norfolk Division of Social Services.

               Ayodele M. Ama, Guardian ad litem (Ama & Simpson, on briefs),
               for Lakira Shameka and Larissa Shanta Hardy.

               Adrianne L. Bennett (Berry, Ermlich, Lomax & Bennett, on briefs),
               for Simonia Hardy.


       These appeals arise from the denial of petitions filed by the Norfolk Division of Social

Services (the Division) for (1) permanency planning with the goal of adoption and (2) the

termination of parental rights on behalf of two minor female children, Lakira and Larissa.

Simonia Hardy (mother) challenged the petitions because she believed the children’s best

interests would not be served by making the children available for adoption; adoption would

remove the children from their placement with a foster parent, with whom the children had
developed an emotional attachment. For the reasons that follow, we affirm the decision of the

trial court.

                                     I. Procedural Background

        The minor children who are the subjects of this appeal were eight and ten at the time of

the circuit court hearing. Initially, they and their two older brothers, A. and M., came into the

care of the Division in 1994 at the request of their mother because she was homeless at the time.

They were returned to mother’s custody when her personal circumstances stabilized. However,

in September 1995, they were again removed as a result of the mother’s abusive disciplinary

methods and her inability to provide adequate shelter for the family. The children were then

placed in foster care with Shirley Blount. After mother received extensive services, including

job readiness assistance, parenting classes, referrals for housing, and therapy for the children

with Dr. Lawrence Ross, a psychologist, her circumstances improved sufficiently to permit the

return of Lakira and Larissa to her custody in August 1999. However, A. and M. did not return;

M. was placed in another foster home with a goal of independent living, and A. did not wish to

return to his mother’s custody because he did not care for her “lifestyle.” A. therefore remained

with Blount. Thereafter, the Division continued to provide services to the family.

        On October 5, 2000, Lakira and Larissa were again removed from mother’s custody, on

grounds of abuse and neglect, and placed in foster care with another foster care provider.

However, Lakira and Larissa soon returned to the care of Blount because they began

experiencing severe behavioral problems.

        In the course of their stay in foster care, the Division filed several foster care plans,

including its plan with the goal of adoption, which was approved by the Norfolk Juvenile and

Domestic Relations District Court on February 2, 2001. The Division subsequently filed a

petition for permanency planning with adoption as the goal and a related petition for the

                                                 -2-
termination of parental rights. The juvenile and domestic relations district court denied both

petitions. The Division and the guardian ad litem for the children appealed the decisions to the

circuit court. The circuit court granted the petition with respect to the children’s father,1 but

denied it as to mother. The Division and the children’s guardian ad litem appeal the court’s

denial of the petition to terminate mother’s parental rights.

                                      II. Factual Background

       The circuit court held an evidentiary hearing on May 23, 2002 and May 28, 2002 to

determine the merits of the Division’s appeal from the juvenile and domestic relations district

court. At that hearing, the court heard evidence that established mother was unable to properly

care for her children. Mother testified that she did not have a stable residence. Mother also

stated that, although she had held a steady job at a fast food restaurant for several months, she

was still living in a “group home” to save money. She further admitted that she had not

continued counseling as recommended by the Division. In addition, she spent forty-five days in

jail in the summer of 2001 because she had violated a court-imposed condition that she complete

an anger management program, a condition which had been imposed as part of the sentence she

received after being convicted for assault and battery of a police officer. In closing argument,

mother’s attorney admitted that mother was not ready to have the children returned to her.

       Other evidence in the case established that the children were doing well under the care of

their foster mother, Shirley Blount. The children had known Blount since 1995 when they were

first removed from mother’s custody. Dr. Brian K. Wald, a clinical psychologist who evaluated

Lakira and Larissa, testified that the girls told him they did not want to return to their mother’s

custody because they considered Blount a “surrogate mother.” He confirmed that they were


       1
          Father was incarcerated for second-degree murder at the time of the circuit court’s
hearing. His expected release date is 2019. The termination of his parental rights is not an issue
in this appeal.
                                               -3-
doing well in her care. Joyce Bennett, a social worker for the Division, testified that the children

had a strong emotional bond with Blount and with their brother, A., who also resided in the

Blount home. Gale Pigram, a social worker for the Division, confirmed that A. and Lakira and

Larissa were “very close” and that A. was “very involved” with his younger sisters. According

to Bennett, all the children called Blount “grandmother” or “grandmama.” Bennett also testified

that adoption would be difficult for Lakira and Larissa because they were “used to” Blount’s

foster home and because A. could not follow them to a new adoptive home. Pigram said that

when she talked about adoption with Lakira and Larissa, they appeared “sad and withdrawn.”

Blount said that Lakira and Larissa told her that they did not want to be adopted unless Blount

could “go with them.”

       Blount testified that Lakira and Larissa were “doing beautiful” under her care and that,

because the children had been with her so long, Blount and her husband were “just like mom and

dad to them.” Blount related that Lakira and Larissa exhibited behavioral problems in the short

time they were with another foster care provider because “they really wanted to come back . . . .

[T]hey had been with me five years prior to that, and I was really the only mother or

grandmother that they really knew anything about.” Due to the behavioral problems exhibited

by the girls when they were in the care of the other foster parent, Blount opined that Lakira and

Larissa would not do well in an adoptive placement. Mother confirmed that her children “love

Ms. Blount to death” and that she is “grandma to them.” Lakira and Larissa “would be

devastated,” according to mother, if they were taken from Blount’s care. Accordingly, mother’s

attorney argued that it would not be in the children’s best interests to terminate parental rights

because the children would be removed from Blount’s home.2


       2
        Blount testified that she could not adopt Lakira and Larissa because her husband was ill
and she was uncertain how much care she would have to provide him in the future.

                                                -4-
       Based on this evidentiary hearing, the circuit court entered an order on March 10, 2003,

granting the petition to terminate the father’s parental rights but denying the petition seeking

termination of the mother’s parental rights. It did not address the Division’s petition seeking

adoption for the children. In an opinion letter to counsel, the court stated:

                        The evidence established a number of deficiencies in Mrs.
               Hardy’s parenting as well as Social Services desire for the stability
               of a permanent home for the girls through adoption. The evidence
               also established that [the girls] are currently in a stable foster home
               with Ms. Shirley Blount with whom they have resided for a
               substantial portion of their lives. Their older brother [A.] with
               whom the girls appear to have a strong bond, also is in foster care
               with Mrs. Blount. It is significant to the Court that Mrs. Blount
               testified to regular personal and telephone contact between the
               girls and their mother and that both girls look forward to this
               contact.
                        [The girls] are currently in a positive, stable environment
               with a supportive older brother and regular contact with their
               natural mother. In the Court’s opinion, maintaining this current
               support system is in the girls [sic] best interests.
                        While [mother] has substantial deficiencies to overcome,
               the Court is not prepared to terminate her residual parental rights at
               this time.

The Division and the children’s guardian ad litem appeal the decision, claiming that the trial

court’s decision was plainly wrong. For the following reasons, we affirm.

                                            III. Analysis

       On review of a trial court’s decision regarding the termination of parental rights, we

presume the trial court “‘thoroughly weighed all the evidence, considered the statutory

requirements, and made its determination based on 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) (quoting

Farley v. Farley, 9 Va. App. 326, 329, 387 S.E.2d 794, 796 (1990)). The trial court is vested

with “broad discretion in making the decisions necessary to guard and to foster a child’s best

interests.” Farley, 9 Va. App. at 325, 387 S.E.2d at 795. Accordingly, the trial court’s decision

will not be disturbed on appeal unless it committed an abuse of discretion, id., or unless its
                                                -5-
decision was plainly wrong or without evidence to support it. Peple v. Peple, 5 Va. App. 414,

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

       The law governing termination of parental rights is found in Code § l6.1-283(B) and (C).

Because both subsection (B) and (C) contain substantially the same requirements, a petition for

termination may be based on either one or both. See Ferguson v. Stafford County Dep’t of Soc.

Servs., 14 Va. App. 333, 340, 417 S.E.2d 1, 5 (1992) (upholding termination under both

subsections); see also Richmond Dep’t of Soc. Servs. v. L.P., 35 Va. App. 573, 583, 546 S.E.2d

749, 754 (2001) (noting that both subsections “clearly relate to the same subject matter, have the

same basic objectives, are framed under a single system, and, thus, are ‘governed by one spirit

and policy’” (quoting Stanley v. Tomlin, 143 Va. 187, 195, 129 S.E. 379, 382 (1925))). In fact,

the Division relies on both Code subsections in this appeal.3

       Code § 16.1-283(B) provides, in pertinent part, that parental rights of the parent of a child

placed into foster care for abuse or neglect may be terminated if, by clear and convincing

evidence, the court finds it is in the best interests of the child and that abuse or neglect presents a

               serious threat and substantial threat to his life, health or
               development; and

               2. It is not reasonably likely that the conditions which resulted in
               such neglect or abuse can be substantially corrected or eliminated
               so as to allow the child’s safe return to his parent or parents within
               a reasonable period of time.

Code § 16.1-283(C) provides, in relevant part:

               The residual parental rights of a parent . . . of a child placed in
               foster care . . . may be terminated if the court finds . . . that is in the
               best interests of the child and that:

                           *       *       *       *        *       *         *


       3
         Although the trial court terminated father’s parental rights pursuant to Code
§ 16.1-283(B), the record does not disclose which code section it relied upon in denying the
Division’s petition to terminate mother’s parental rights.
                                               -6-
               2. The parent or parents, without good cause, have been unwilling
               or unable within a reasonable period of time not to exceed twelve
               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). Both sections further provide that proof that the parent has failed to follow

through with the appropriate and reasonable rehabilitative efforts of social, medical or mental

health agencies, which efforts are aimed at reducing or eliminating the abuse or neglect of the

child in question, shall be prima facie evidence that the conditions leading to the foster care

placement have not been remedied. Code § 16.1-283(B), (C).

       Thus, before terminating parental rights under Code § 16.1-283(B), a court must

determine whether the evidence establishes: (1) that termination is in the best interests of the

children; (2) that the neglect or abuse suffered by the child presents a serious threat to the child’s

health or well-being; and (3) that the conditions which resulted in the abuse or neglect cannot be

corrected within a reasonable period of time. Under Code § 16.1-283(C), a court must determine

whether the evidence establishes: (1) that termination is in the best interests of the children, and

(2) that the conditions which resulted in the foster care placement have not been remedied within

twelve months. Under both subsections, a finding that termination is in the best interests of the

children is a threshold determination.

       We acknowledge that the evidence in this case supports the Division’s petition for

termination, in part. The evidence showed that mother did not follow through with the

recommendations of the Division to continue counseling. It further showed that the conditions

which resulted in the removal of Lakira and Larissa were not remedied either within a reasonable

time, see Code § 16.1-283(B), or within twelve months, see Code § 16.1-283(C). At the time of

the hearing, mother still did not have stable housing, and she in fact conceded that she was not

capable of caring for her children.

                                                 -7-
       However, the evidence also established that termination of mother’s parental rights was

not in the children’s best interests. Testimony from Dr. Wald, Bennett, Blount, and mother

established that Lakira and Larissa were doing very well under the care of Blount. Mother

opined that her children “would be devastated” if they were removed from Blount’s care. The

court also heard testimony that Lakira and Larissa would not likely fare well in an adoptive

placement because they had a strong bond with their brother, A., and with Blount, whom they

treated as their grandmother. Pigram testified that the children became “sad and withdrawn”

when she discussed adoption with them, and Blount testified that Lakira and Larissa did not want

to be adopted unless she could “go with them.” Indeed, during the short time Lakira and Larissa

were under the care of another foster mother, they experienced severe behavioral problems that

were remedied only upon their return to Blount. Based on this evidence, the trial court

determined that termination of mother’s parental rights was not in the children’s best interests.

We cannot say that the trial court abused its discretion in reaching this conclusion because the

evidence fully supports its determination.

       The Division argues, however, that the trial court’s decision results in a de facto

permanent foster care placement and that, under the law, the court cannot consider permanent

foster care before it terminates parental rights and determines that adoption is not feasible.

Although there is some support for this position in the statutes governing permanency planning

for children, see, e.g., Code § 16.1-282.1(A) (placing permanent foster care as a goal behind

transferring the child to a relative and behind termination of parental rights); Code § 63.2-908

(stating that a “court shall not order that a child be placed in permanent foster care unless it finds

that . . . diligent efforts have been made by the local department to place the child for adoption

and such efforts have been unsuccessful”), and in our case law, see, e.g., Stanley v. Fairfax

County Dep’t of Soc. Servs., 10 Va. App. 596, 605-06, 395 S.E.2d 199, 204 (1990) (holding that

                                                 -8-
“[p]ursuant to Code §§ 63.1-206.1(A) [now Code § 63.2-908] and 16.1-281(B), the court can

only consider permanent foster care after it has determined that adoption, upon termination of

residual parental rights, is not an alternative in a given case”), we find that the trial court did not

err on this ground for two reasons.

         First, the court did not, and could not, order permanent foster care. The Division never

presented the court with a petition for permanent foster care; it only presented the court with a

petition for termination of mother’s parental rights to be followed by adoption. See Martin v.

Pittsylvania County Dep’t of Soc. Servs., 3 Va. App. 15, 23, 348 S.E.2d 13, 17 (1986) (noting

that “[a] petition for termination of parental rights pursuant to Code § 16.1-283 does not

encompass a petition for permanent foster care. The latter is not a less drastic form of the

former, but rather is a different and distinct alternative.”). The court thus had only two

alternatives—it could either grant the petition seeking termination, or it could deny the petition.

Finding that termination would not be in the children’s best interests, the court properly denied

the petition. Second, the best interests of the child is the court’s paramount concern and

therefore properly governed the ultimate resolution of the issue. See, e.g., Keel v. Keel, 225 Va.

606, 612, 303 S.E.2d 917, 921 (1983); Parish v. Spaulding, 26 Va. App. 566, 572, 496 S.E.2d 91,

94 (1998), aff’d, 257 Va. 357, 513 S.E.2d 391 (1999). Here, the trial court’s determination that

the best interests of the children would be served by not terminating mother’s parental rights, and

by allowing them to stay in the stable environment supplied by Blount, is supported by the

evidence. Accordingly, under our standard of review, we must affirm the decision of the trial

court.

                                                                                             Affirmed.




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