                   COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


DONNA FAYE SMITH
                                            MEMORANDUM OPINION *
v.   Record No. 0830-99-3                       PER CURIAM
                                             OCTOBER 5, 1999
ROANOKE CITY DEPARTMENT
 OF SOCIAL SERVICES


           FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
                     Jonathan M. Apgar, Judge

           (Joseph F. Vannoy, on brief).   Appellant
           submitting on brief.

           (William M. Hackworth, City Attorney;
           Allen T. Wilson, Assistant City Attorney, on
           brief). Appellee submitting on brief.


     Donna Faye Smith (mother) appeals the decision of the circuit

court terminating her parental rights to two of her children,

"CWA" and "CSA."   Mother contends that the trial court erred by

(1) finding that Roanoke City Department of Social Services (DSS)

presented clear and convincing evidence sufficient to support

terminating her parental rights; and (2) finding that it was in

the children's best interests for mother's parental rights to be

terminated.   We conclude that this appeal is without merit.

Accordingly, we affirm the decision of the trial court.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     "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." 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. (citations omitted).   "Code § 16.1-283 embodies 'the statutory

scheme for the . . . termination of residual parental rights in

this Commonwealth' [which] . . . 'provides detailed procedures

designed to protect the rights of the parents and their child,'

balancing their interests while seeking to preserve the family."

Lecky v. Reed, 20 Va. App. 306, 311, 456 S.E.2d 538, 540 (1995)

(citations omitted).

     Former Code § 16.1-283(C)(2) 1 , in effect at the time of this

case, provided that a parent's residual parental rights to a child

placed in foster care could be terminated if the trial court found

it was in the best interests of the child and,

            [t]he parent or parents, without good cause,
            ha[d] been unwilling or unable within a
            reasonable period not to exceed twelve
            months to remedy substantially the
            conditions which led to the child's foster

     1
         Code § 16.1-283 was re-written in 1998.


                                - 2 -
            care placement, notwithstanding the
            reasonable and appropriate efforts of
            social, medical, mental health or other
            rehabilitative agencies to such end.

     Proof that the parent, without good cause, failed or was

unable to make reasonable progress toward the elimination of the

conditions which led to the child's foster care placement in

accordance with his or her obligations under and within the time

limits set forth in a foster care plan filed with the court or a

jointly designed foster care plan is prima facie evidence of the

conditions set forth in Code § 16.1-283(C)(2).     See Former Code

§ 16.1-283(C)(3)(b) (recodified as Code § 16.1-283(C)(2)).

     The children's father (father) contacted DSS on August 21,

1996 and claimed that he was unable to take care of CWA and CSA.

Father requested that DSS take the children.     Before a DSS

representative arrived at father's residence, mother took the

children.

     Sometime later, father again contacted DSS, stating that

mother had returned the children to him, but that he did not have

food or supplies for the children.      Kellie Flowers, of DSS,

testified that she went to father's residence and saw that he had

no food or furnishings for the children.     Mother had removed the

food, furnishings, refrigerator and stove from father's residence.

After Flowers spoke with mother, she returned the stove,

refrigerator and some canned food to father's residence.




                                - 3 -
        Mother advised Flowers that father had been abusive to her

and the children.    However, mother left the children in father's

care.    At a hearing held on October 31, 1996, the children were

placed in the legal custody of DSS.      At the hearing, both mother

and father stated that they were financially unable to take care

of the children.    Flowers testified that she urged mother to go to

a battered women's shelter so that she could keep the children

together and with her, but mother refused to go.     Flowers also

advised mother that if she would work with Flowers, Flowers could

help mother keep the children.    Later, father died.

        On February 19, 1999, a hearing was held concerning the

termination of mother's parental rights.     William Bailey, a foster

care supervisor for DSS, testified that when the children were

placed into foster care in the fall of 1996, mother received a

copy of the foster care service plan, which listed the things

mother needed to do in order to have her children returned to her

care.    DSS advised mother that she needed to find and maintain

stable employment and adequate housing, visit the children, attend

counseling, and keep DSS informed of any changes in her situation.

On January 22, 1997, mother signed a contract with DSS, which

listed the tasks that mother needed to complete in order to have

the children returned to her.

        Bailey stated that, initially, mother "showed signs of

complying" with the contract.    She started counseling, but then

only attended two or three sessions.      DSS advised her to take a

                                 - 4 -
parenting class, but she did not complete the class.   Mother was

incarcerated for a probation violation for a period of time, and

she did not maintain steady employment for more than a few months

at a time.    Although during the first year that the children were

in foster care, mother regularly visited the children, she failed

to comply with the other terms of the contract in order to have

the children returned to her custody.   Bailey testified that as

time went on, it "became clear to" him that mother was "satisfied"

to have other people care for the two children as long as she

could visit the children.   Bailey stated that DSS never considered

returning the children to mother.   Bailey also indicated that DSS

sometimes had trouble reaching mother by telephone because she had

no permanent residence after early 1997.

     Bailey testified that both children had "well documented

special needs" when they entered foster care.   CWA was attending

class for emotionally disturbed children.    CSA had "delayed

development," was in speech therapy, and "was basically

non-verbal" when he entered foster care.    Bailey stated that

mother was aware of the children's special needs.   Bailey

testified that the "children are doing remarkably better than they

were two years ago."

     Mother was on probation and parole for a prior criminal

conviction.    Brent Keith, mother's probation and parole officer,

testified that mother is required by the terms of her probation

and parole to attend counseling for depression, family and

                                - 5 -
relationship issues.   Keith stated that mother had previously

missed several of her counseling sessions, although in the months

immediately preceding the hearing, she had been attending her

sessions.   Keith also testified that mother is required to live

with her aunt and grandmother until Keith believes it would be

appropriate to live on her own.   Keith stated that because mother

has not obtained and maintained employment, paid her court costs

or court-ordered restitution, and has missed some of her

counseling sessions, he did not believe that mother would qualify

to live on her own.

     On October 3, 1997, mother signed another contract with DSS,

again acknowledging the tasks she needed to complete in order to

have the children returned to her care.   Mary Beth Newton

testified that during the fall of 1997, she was in charge of the

children's case.   Newton said her biggest concern was mother's

lack of steady employment.    Newton also stated that she had

difficulty maintaining contact with mother because mother did not

have a permanent residence.    In April, 1998, mother wrote a

good-bye letter to the children, but Newton said that DSS would

not allow the children to read the letter.   Newton also stated

that mother attended counseling sessions "on and off" and attended

many of the scheduled visits with the children.   Newton testified

that the children tended to exhibit behavior problems after

visiting with mother or when mother would cancel the visits at the

last minute.   Furthermore, mother did not maintain stable

                                - 6 -
employment, and she did not obtain stable, independent, and

appropriate housing for the children while Newton handled the

children's case.

     Eric Robinson was the foster care worker for the children

from July, 1998 until the February 17, 1999 hearing date.

Robinson stated that mother had missed a few visits with her

children and had been late to some of the visits.   Robinson also

stated that DSS would not return the children to mother's care at

that time.

     Mother testified that she planned to continue counseling and

she intended to find a job.   She stated that since September,

1996, the longest time period in which she continuously held the

same job was six weeks.   The longest time period in which she had

lived in one residence since September, 1996 was nine months.

Mother still lived with her grandmother, but she stated that she

had been renting a house that she did not live in, despite the

fact that she was unemployed.   She also admitted that she had not

paid her court costs or restitution from her prior conviction.

     Thus, the evidence proved that during the time period from

the date the children were placed in foster care on October 31,

1996 until February, 1999, mother did not request unsupervised

visits with her children, did not file for custody of the

children, failed to maintain steady employment, and failed to

obtain appropriate housing for the children.   In short, during

this time period, mother failed to progress toward having her

                                - 7 -
children returned to her care.    Furthermore, the evidence proved

that the children had special needs and were making improvements

while in foster care.   In addition, evidence was presented that

the children tended to have behavior problems after visiting with

their mother.

     Therefore, although the record suggests that mother expressed

good intentions over the years about having her children returned

to her care, DSS presented clear and convincing evidence,

including mother's own testimony about the instability of her

lifestyle, that mother has been unable or unwilling within a

reasonable period of time to substantially remedy the conditions

which led to the foster care placement, despite the efforts of

rehabilitative agencies.   In addition, DSS presented clear and

convincing evidence that it was in the best interests of the

children to terminate the parental rights of mother.   Accordingly,

we cannot say that the findings of the trial court were plainly

wrong or without evidence to support them.

     For these reasons, we affirm the decision of the trial court.

                                                          Affirmed.




                                 - 8 -
Benton, J., dissenting.

        "The termination of parental rights is a grave, drastic and

irreversible action."     Lowe v. Department of Public Welfare, 231

Va. 277, 280, 343 S.E.2d 70, 72 (1986).    An order terminating

parental rights permanently severs the relationship between a

child and her natural parent and "render[s] the parent a legal

stranger to the child."     Shank v. Department of Social Services,

217 Va. 506, 509, 230 S.E.2d 454, 457 (1976).    Recognizing the

harshness of a termination order, the Supreme Court has observed

the following:

             Our 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
             an important goal for not only the parents
             but also 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).

        As the majority notes, the record suggests that Donna Faye

Smith had good intentions about having her children returned to

her custody.    No evidence proved that she ever neglected her

children or had anything other than their best interests in

mind.    Although Smith sometimes made poor decisions, many of

                                 - 9 -
those decisions were determined by her financial and emotional

difficulties rather than ill will toward the children.   Further,

evidence in the record established that she was trying to

protect herself and the children from abuse by their father.

Apparently, Smith had been involved with the children's father

since she was a pre-teen.   He physically and emotionally abused

her over many years.   Smith suffered trauma from the abuse the

children's father inflicted and from his death.   Smith also

indicated she was a victim of childhood sexual abuse and was

trying to address the problems associated with that abuse

through counseling at Blue Ridge Community Services.

     On June 11, 1998, thirteen months after the children's

father's death, the Roanoke City Department of Social Services

filed its petition to terminate Smith's rights.   The Department

informed Smith that to secure the return of her children she

needed to find stable employment, a suitable place to live,

attend counseling, and visit the children.   Although Smith did

not satisfy those requirements without complication, she

substantially complied with the Department's instructions.     The

record indicates that she showed signs of complying with the

Department's requirements until the spring of 1997, when the

children's father died and she was incarcerated for larceny.

     By the following spring, however, Smith seemed to again be

acting in good faith to comply with the Department's

recommendations.   She maintained stable housing with her

                              - 10 -
grandmother from April of 1998 until the court date.   The record

also established that Smith, in an effort to regain custody of

her children, had rented a three bedroom house and was current

on the rent.   However, she had been unable to occupy the house

because her probation officer required her to live with her

grandmother until she could pay her court costs and restitution

and maintain regular employment.   Smith was attempting to

balance her probation officer's requirement that she live with

family and the Department's requirement that she secure a home

with enough bedrooms for each of the children.   Smith testified

she rented a house because her grandmother's house had only one

extra bedroom and she needed to have a separate room for each of

the two children.

     With the exception of a few missed appointments, Smith

visited her children regularly while they were in foster care.

Although the Department concluded that at some point Smith

seemed "satisfied" to have other people raise her two children

as long as she could visit them, Smith indicated that she very

much wanted to raise her children.

     Although Smith did not attend the parenting class the

Department suggested, she did attend parenting classes while

incarcerated on a probation violation.   Although the Department

was concerned that Smith did not stay in the same job for more

than six weeks at a time, Smith made an effort to stay employed

in one job or another and was never fired from any of her jobs.

                              - 11 -
She quit voluntarily and always found other work.    She has even

worked mowing lawns.    Additionally, as part of her probation,

Smith is tested for drugs three times a week and has never had a

positive test.

     In short, the evidence in the record does not indicate that

Smith ever abused her children.    The children were placed with

social services because Smith and her deceased husband were

financially unable to care for the children.    Smith continues to

suffer a financial inability to provide for the children.

Moreover, the record fails to establish that Smith failed

"without good cause" to remedy the conditions that led to the

placement.

     "By its nature, Code § 16.1-283 'contemplates the use,

where possible, of alternatives less drastic than termination of

parental rights.'"     Edwards v. County of Arlington, 5 Va. App.

294, 312, 361 S.E.2d 644, 654 (1987) (quoting Knox v. Lynchburg

Div. of Social Servs., 223 Va. 213, 223, 288 S.E.2d 399, 404

(1982)).   I believe that the circumstances of this case suggest

that an alternative less drastic than termination of parental

rights was warranted.    Thus, I would reverse the order

terminating Smith's parental rights.




                                - 12 -
