                                COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Beales and Senior Judge Fitzpatrick


VICTORIA M. MacLEAN
                                                                   MEMORANDUM OPINION *
v.      Record No. 1789-07-3                                            PER CURIAM
                                                                      JANUARY 22, 2008
ROANOKE COUNTY
 DEPARTMENT OF SOCIAL SERVICES


                      FROM THE CIRCUIT COURT OF THE CITY OF SALEM
                                 Robert P. Doherty, Jr., Judge

                  (Leisa K. Ciaffone; Leisa K. Ciaffone, P.C., on brief), for appellant.
                  Appellant submitting on brief.

                  (Joseph B. Obenshain, Senior Assistant County Attorney; Roanoke
                  County Attorney’s Office, on brief), for appellee. Appellee
                  submitting on brief.

                  (Holly S. Peters, on brief), Guardian ad litem for the minor child.
                  Guardian ad litem submitting on brief.


        On June 21, 2007, the trial court terminated the residual parental rights of Victoria M.

MacLean (appellant) to her daughter, I.M., pursuant to Code § 16.1-283(C)(2). On appeal,

appellant challenges the sufficiency of the evidence proving the requirements for a termination

pursuant to Code § 16.1-283(C)(2). Appellant also contends the trial court erred in finding the

removal of I.M. from appellant’s custody was warranted. For the following reasons, we affirm

the trial court’s decision.




        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                         BACKGROUND

       On appeal, we view the evidence in the light most favorable to the prevailing party below

and grant to it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax County

Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991).

       I.M. was born to appellant on October 19, 2003. 1 On May 25, 2005, appellant left I.M.,

with nothing but some diapers, at the entrance to their apartment building. Appellant told her

neighbors she was taking the bus to a hospital and would return by 3:00 p.m. Appellant left the

child even though appellant’s neighbors refused to be responsible for I.M.’s care.

       Upon receiving a report about the situation, Shannon Brabham, a social worker with

Roanoke County Department of Social Services (RCDSS), went to the apartment building and

located I.M. Appellant’s neighbors told Brabham they had not agreed to care for the child that day.

Brabham called the hospital and had appellant paged in both the main hospital and the emergency

room. Appellant did not respond. Because it was after 3:00 p.m., Brabham removed I.M. from the

home and left information instructing appellant to contact RCDSS.

       At a hearing on May 31, 2005, the juvenile and domestic relations district court (juvenile

court) found by a preponderance of the evidence that I.M. had been abused and neglected, and

granted RCDSS temporary legal custody of I.M.2 By dispositional order dated August 1, 2005,




       1
         The record does not reflect that I.M.’s father resided with appellant and I.M. at any time
relevant to this proceeding. The parental rights of I.M.’s father were terminated, and he did not
appeal this decision.
       2
          During RCDSS’s investigation of the complaint that appellant abandoned I.M. on May
25, 2005, one of appellant’s neighbors said she had forgotten, when she initially spoke to
Brabham, that she had agreed to watch I.M. on May 25. In Brabham’s opinion, the neighbor was
not a suitable caretaker for I.M. due to brain damage and was particularly sensitive to influence
by others. Ultimately, the complaint of abuse and neglect was determined unfounded by
RCDSS.

                                                -2-
custody of I.M. was transferred to RCDSS based upon abuse and neglect of the child. 3 The goal of

the foster care service plan for I.M. was to return home to appellant. To achieve this goal, appellant

was ordered, among other things, to have a substance abuse assessment by David Geho, remain

chemically free, submit to a psychological evaluation, comply with restrictions regarding visitation

with I.M., complete parenting classes, and maintain suitable housing and stable employment for a

period of six months.

       In July 2005, appellant received treatment at the hospital for anxiety and depression. She

was prescribed three medications and given a thirty-day supply of the drugs. On August 4, 2005,

appellant was referred by RCDSS to Dr. Manjit K. Vohra at the Center for Emotional Care.4 Dr.

Vohra prescribed three medications for appellant, but not the medications she desired. Appellant

was to see Dr. Vohra monthly for medication management reviews. However, appellant did not

like Dr. Vohra, and subsequently appeared for only one visit with her.

       In September 2005, appellant told RCDSS she had not been able to afford to fill her

prescriptions for medications. RCDSS provided appellant a list of agencies, and their telephone

numbers, she could contact to obtain assistance with the cost of prescription medication. Samantha

Hinton, a RCDSS social worker, advised appellant that she needed to contact the agencies before

RCDSS would consider assisting her with the cost of medications. Appellant did not provide

Hinton with any details about what agencies she contacted for assistance.

       Rachel Preston, a parent advocate mentor, was appointed to assist appellant in reaching the

goals of the foster care service plan. In Preston’s presence, appellant called some of the agencies on

the list Hinton provided, but appellant was unable to obtain assistance. Many of the agencies had



       3
           Appellant did not file an appeal from the dispositional hearing.
       4
         The record does not contain a report from Dr. Vohra, nor does it indicate the diagnosis
she rendered after evaluating appellant.
                                               -3-
waiting lists or required the recipient of such assistance to be employed, and appellant was not

working at the time. Hinton called two of the agencies on the list, and learned appellant had not

contacted them.

         Preston provided appellant with transportation to help her secure employment and for her

scheduled visitation sessions with I.M. Despite Preston’s assistance, however, appellant did not

maintain stable employment. After I.M. was removed from appellant’s custody, she worked at a

series of different establishments for brief periods, was unemployed for months, and spent a portion

of the time in jail. 5

         Appellant’s participation in scheduled visitation with I.M. was sporadic. Appellant would

cancel visitation sessions at the last minute, appear late, or simply fail to appear. While at times

appellant behaved appropriately during her supervised visitation with I.M., she was easily distracted

and spent portions of her visitation periods talking on the telephone. Throughout her interactions

with RCDSS, appellant’s attitude remained defiant and hostile, and she did not accept responsibility

for the conditions that led to I.M.’s removal.

         In November 2005, Preston visited the apartment appellant then occupied. Preston

described the apartment as a “complete disaster” with beer bottles, cigarette butts, and old food

about the place.

         Geho performed a substance abuse assessment of appellant on October 13, 2005, and

determined she had a low probability of substance dependence. Nonetheless, Geho recommended

appellant attend six to eight individual sessions so that a complete evaluation and diagnosis could be

reached. One month after Geho’s assessment, appellant tested positively for cocaine. 6 Geho opined

that appellant was in need of treatment and therapy for substance abuse. Appellant did not return


         5
             On March 9, 2007, appellant was convicted of statutory burglary.
         6
             Appellant again tested positively for cocaine on May 9, 2006.
                                                    -4-
for follow-up treatment with Geho. Nor did appellant complete a series of parenting classes as

required.

       RCDSS explored the placement of I.M. with relatives. Two relatives indicated an interest in

obtaining custody of I.M., but they eventually dropped their petitions seeking custody.

       At the time of the termination hearings in circuit court on March 7 and April 20, 2007, I.M.

was thriving in the care of her foster family. She had established a close bond with the family, and

the family desired to adopt her.

                                            ANALYSIS

                                                     I.

       A termination under Code § 16.1-283(C)(2) requires clear and convincing evidence that

the parent,

               without good cause, ha[s] 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, notwithstanding reasonable and appropriate
               efforts of social, medical, mental health, or other rehabilitative
               agencies to such end.

On appeal, appellant argues she did not fail, without good cause, to remedy substantially the

conditions that led to I.M.’s foster care placement and that RCDSS did not provide reasonable

and appropriate efforts to assist her in doing so.

                       When reviewing a decision to terminate parental rights, we
               presume the circuit court “thoroughly weighed all the evidence,
               considered the statutory requirements, and made its determination
               based on the child’s best interests.” Fields v. Dinwiddie County
               Dep’t of Soc. Servs., 46 Va. App. 1, 7, 614 S.E.2d 656, 659 (2005)
               (quoting Farley v. Farley, 9 Va. App. 326, 329, 387 S.E.2d 794,
               796 (1990)). “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. (quoting Logan, 13
               Va. App. at 128, 409 S.E.2d at 463 (citation omitted)). In its
               capacity as factfinder, therefore, the circuit court retains “broad
               discretion in making the decisions necessary to guard and to foster
                                                 -5-
               a child’s best interests.” Farley, 9 Va. App. at 328, 387 S.E.2d at
               795.

Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 265-66, 616 S.E.2d 765, 769 (2005).

       When I.M. was nineteen months old, appellant left the child at their apartment building

without the consent of a responsible adult to care for her. Appellant did not return at the time she

had promised, nor was RCDSS able to contact appellant regarding her child. As a result of this

situation, RCDSS effected an emergency removal of I.M.

       Subsequent to the child’s removal, the juvenile court determined that to remedy the

neglectful conditions leading to the child’s placement in foster care, appellant was required to

comply with a number of conditions and assume various responsibilities. The record

demonstrates appellant consistently failed or refused to comply with the requirements of the

foster care service plan. In the twenty-two months between I.M.’s removal and the termination

hearing, appellant did not maintain steady employment or obtain suitable housing. In fact,

appellant spent a portion of that time in jail and was convicted of a felony. She did not complete

the substance abuse treatment recommended by Geho, and tested positively for drugs. Appellant

did not follow up with Dr. Vohra. Appellant failed to follow the rules of RCDSS regarding

visitation with her child, and her visitation with I.M. was sporadic. Throughout her contact with

RCDSS, appellant remained hostile to the agency’s efforts.

       Appellant maintains that, because RCDSS did not provide her with funding for certain

medications she desired, she either had good cause for failing to comply with the foster care

service plan or the efforts of RCDSS to assist her were not “reasonable and appropriate.”

However, appellant presented no medical evidence she had been diagnosed with a condition

preventing her from being an effective parent unless she received medication. Nor was there

evidence she had been prescribed medication necessary to enable her to meet the requirements of

the foster care service plan. Appellant refused to continue treatment with Dr. Vohra, to whom
                                               -6-
RCDSS referred appellant for medication management. Thus, appellant did not have good cause

for not complying with the conditions imposed by the juvenile court for reunification with her

daughter.

       Because “‘[r]easonable and appropriate’ efforts can only be judged with reference to the

circumstances of a particular case,” Ferguson v. Dep’t of Soc. Servs., 14 Va. App. 333, 338, 417

S.E.2d 1, 4 (1992), a trial judge “must determine what constitutes reasonable and appropriate

efforts given the facts before the court.” Id. The evidence proved RCDSS provided appellant

with a wide range of services after I.M. entered foster care. Preston was appointed to serve as

appellant’s parent advocate mentor, and was available to assist appellant in achieving the goals

required of her. Despite Preston’s efforts, appellant did not hold a steady job or appear

consistently for visitation with I.M. Appellant refused the services of both Geho and Dr. Vohra

that were made available to appellant by RCDSS.

       Appellant claims Hinton arbitrarily required her to contact a number of agencies and

request financial assistance with her medications. As noted above, however, appellant presented

no medical evidence of a diagnosis. In light of all the circumstances, particularly appellant’s

inability or unwillingness to maintain employment, RCDSS’s efforts to assist appellant were not

rendered unreasonable or inappropriate by requiring appellant to demonstrate a personal

commitment to obtaining the medications she claimed she needed in order to parent I.M.

       We recognize 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, 28-28 (1991) (quoting Lowe v. Dep’t of Public Welfare of Richmond, 231 Va.

277, 280, 343 S.E.2d 70, 72 (1986)). However, “[i]t is clearly not in the best interests of a child

to spend a lengthy period of time waiting to find out when, or even if, a parent will be capable of

resuming his [or her] responsibilities.” Kaywood v. Halifax County Dep’t of Soc. Servs., 10

                                                -7-
Va. App. 535, 540, 394 S.E.2d 492, 495 (1990). Because the evidence supports the trial court’s

decision to terminate appellant’s parental rights, we do not disturb it.

                                                 II.

        Appellant also contends the evidence did not prove the child’s removal from her custody

in May 2005 was warranted. In its August 1, 2005 dispositional order, the juvenile court found

the removal justified and awarded RCDSS custody of I.M. Pursuant to Code § 16.1-278.2(D), a

dispositional order “is a final order from which an appeal may be taken in accordance with

§ 16.1-296.” Notwithstanding Code § 16.1-278.2(D), appellant did not appeal the dispositional

order to the circuit court.

        Even assuming without deciding review of the dispositional order is permissible in this

appeal, RCDSS was justified in removing I.M. from appellant’s custody on May 25, 2005. On

that date, appellant either abandoned I.M. at the apartment building despite her neighbors’

refusal to be responsible for the child, or she left the young child with a person who was unable

to remember she had agreed to care for the child. Appellant left the child with no provisions or

emergency contact information. Appellant did not return at the time she promised. The record

thus supports the juvenile court’s finding that appellant’s irresponsible behavior rendered I.M.

abused and neglected.

                                          CONCLUSION

        For the foregoing reasons, we affirm the trial court’s termination of appellant’s parental

rights to I.M.

                                                                                    Affirmed.




                                                -8-
