                                              COURT OF APPEALS OF VIRGINIA
UNPUBLISHED

              Present: Judges Russell, AtLee and Senior Judge Haley


              KATHRYN KOCH
                                                                               MEMORANDUM OPINION*
              v.     Record No. 1833-19-2                                          PER CURIAM
                                                                                   MAY 19, 2020
              CHESTERFIELD-COLONIAL HEIGHTS
               DEPARTMENT OF SOCIAL SERVICES


                                FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                                              Timothy J. Hauler, Judge

                               (John G. LaFratta, on brief), for appellant.

                               (Michael S. J. Chernau, Senior Deputy County Attorney; Rebecca A.
                               Imholt, Guardian ad litem for the minor children, on brief), for
                               appellee.


                     Kathryn Koch (mother) appeals the circuit court’s orders terminating her parental rights to

              three children. Mother argues that the circuit court erred in finding that the evidence was sufficient

              to terminate her parental rights because the Chesterfield-Colonial Heights Department of Social

              Services (the Department) “did nothing to explore her as an option before moving to terminate her

              rights and offered her no services in an attempt to rehabilitate her situation.” Upon reviewing the

              record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we

              summarily affirm the decision of the circuit court. See Rule 5A:27.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                        BACKGROUND1

       “On appeal from the termination of parental rights, this Court is required to review the

evidence in the light most favorable to the party prevailing in the circuit court.” Yafi v. Stafford

Dep’t of Soc. Servs., 69 Va. App. 539, 550-51 (2018) (quoting Thach v. Arlington Cty. Dep’t of

Human Servs., 63 Va. App. 157, 168 (2014)).

       Mother and Erick Smith, a/k/a Ra’son Nasir (father), are the biological parents to R.K.,

X.S., and S.S., who are the subject of this appeal.2 The Department became involved with the

family in the fall of 2012, after father was arrested for physically assaulting mother. At that

time, R.K. was two years old, X.S. was a year old, and mother was pregnant with S.S. Mother

was emotionally and mentally unable to care for R.K. and X.S., so they lived with a family friend

and then with the paternal grandmother in North Carolina. After father was released from

incarceration, he lived with the children and the paternal grandmother for a few months until

they moved back to Chesterfield County for the birth of S.S. Mother and father had ongoing

domestic violence incidents and violated “numerous protective orders,” while they continued to

live together.

       On May 21, 2013, mother and father had a domestic dispute after mother questioned

father about marks on R.K.’s body; father assaulted mother, leaving her with a broken arm and



       1
         The record in this case was sealed. Nevertheless, the appeal necessitates unsealing
relevant portions of the record to resolve the issues appellant has raised. Evidence and factual
findings below that are necessary to address the assignments of error are included in this opinion.
Consequently, “[t]o the extent that this opinion mentions facts found in the sealed record, we
unseal only those specific facts, finding them relevant to the decision in this case. The remainder
of the previously sealed record remains sealed.” Levick v. MacDougall, 294 Va. 283, 288 n.1
(2017).
       2
         The circuit court also entered orders terminating father’s parental rights under Code
§ 16.1-283(B) and (C)(2). Father appealed the circuit court’s ruling. See Smith v.
Chesterfield-Colonial Heights Dep’t of Soc. Servs., Record No. 1821-19-2.

                                                -2-
injuries to her eye and nose. Father was arrested for malicious wounding and subsequently

threatened mother. As a result, the Department and mother developed several safety plans. The

Department also referred mother for mental health services and short-term crisis intervention

services. The Department became increasingly concerned about mother’s overuse of pain

medication and her mental health and emotional state. In June 2013, mother was hospitalized for

psychiatric care. In July 2013, father entered into a plea agreement and pleaded guilty to a

reduced charge of assault and battery of a family member; he was sentenced to twelve months in

jail, with four months suspended. The Chesterfield County Juvenile and Domestic Relations

District Court (the JDR court) entered a preliminary child protective order, adjudicated the

children as abused and neglected, and removed the children from the parents’ custody.

       After the children’s removal, the Department offered numerous services to mother,

including assistance with transportation. The Department also arranged for random drug tests

and supervised visitations between mother and the children. In addition, the Department referred

mother for a psychological evaluation. In April 2014, Dr. King, a licensed clinical psychologist

and social worker, completed a psychological evaluation for mother. Dr. King concluded that

mother was “mentally and generally unstable” and not capable of meeting her children’s needs at

the time. Although mother completed the psychological evaluation, she did not comply with

other services, and she missed several visitation appointments and court hearings.

       The Department worked with father, who was compliant with the majority of the services

offered, and in July 2015, the Department recommended that the court award joint custody of the

children to father and his girlfriend, Emilie Spruill, because Spruill provided financial support,

emotional support, and transportation to the family. On August 10, 2015, the JDR court awarded

joint legal and physical custody of the children to father and Spruill. Mother was not present at

the hearing.

                                                -3-
       In November 2016, the police were dispatched to a Walgreens store after the manager

saw mother and her boyfriend arguing. The manager reported that mother, who was visibly

upset, returned to the store to purchase a package of knives and rope. Mother asked how strong

the rope was, and when the manager said that it held forty pounds, she replied that it “wasn’t

strong enough.” The manager called the police because he was concerned about mother’s

well-being and noticed that she wore a house arrest anklet. The police spoke with mother, who

admitted that she was “very depressed” but denied any suicidal plans. She indicated that she

wanted the knives “in case she wanted to start cutting again.” The police contacted Chesterfield

Mental Health and the Sheriff’s Department that supervised her house arrest.

       Unbeknownst to the Department, Spruill and father later ended their relationship “due to

domestic issues,” and Spruill petitioned the JDR court to be relieved of custody, which the JDR

court granted on April 10, 2017. On August 27, 2017, father and Spruill were involved in a

“road rage incident.”3 Father was directly indicted and arrested in December 2017. After father

was arrested, mother cared for the children.

       When the Department learned of father’s arrest and that mother was caring for the

children, the Department petitioned to remove the children and placed them in foster care. On

December 11, 2017, the JDR court adjudicated that the children were abused or neglected. On

February 5, 2018, the JDR court entered a dispositional order with concurrent goals of relative

placement and adoption. Mother did not appeal the ruling.

       When the children entered foster care the second time, the Department did not pursue a

goal of return home because it previously had attempted to return the children home and that

goal was unsuccessful. Therefore, the Department did not offer services to mother. The



       3
           The children were not present during the incident.

                                                -4-
Department was aware that mother had requested for “somebody to come assess her situation.”

The Department, however, had already offered her services previously, and she had not complied

with the Department’s efforts to reunite her with the children.

       The Department investigated relative placements, including the maternal and paternal

grandmothers. The maternal grandmother did not want to be considered a relative placement,

and the paternal grandmother was not approved through the Interstate Compact on the Placement

of Children. When the Department determined that relative placement was not an option, it

amended the foster care goal to adoption. On October 1, 2018, the JDR court approved the foster

care goal of adoption for the children; the parents did not appeal the permanency planning order.

At the recommendation of the children’s therapists, the Department ended all contact between

the children and the parents.

       On April 15, 2019, the parties appeared before the JDR court, which ordered a drug test

for both parents. Mother tested positive for alcohol and buprenorphine.4 On the same day, the

JDR court terminated mother’s parental rights. Mother appealed the JDR court’s ruling.

       On November 7, 2019, the parties appeared before the circuit court. The Department

presented evidence about the children and their well-being. The social worker described all three

children as “very bright,” but the children, especially R.K. and X.S., also had displayed anger,

aggression, and tantrums. The social worker testified that R.K., who was almost ten years old,

“struggle[d] the most of all three children.” R.K. had “tantrums” that escalated into self-harming

behavior, property destruction, or physical aggression toward his siblings or the foster parents.

He had been admitted to a residential treatment facility, where he received individual counseling,

group counseling, and medication management. R.K. reported to his counselor that father had



       4
           In contrast, father tested negative for drugs and alcohol.

                                                  -5-
hit him with an open hand and belt “on multiple parts of his body,” and R.K. had seen father hit

and kick mother, as well as threaten to kill her with a knife.5 R.K. was released from the facility

approximately one month before the circuit court hearing and was receiving outpatient therapy

and medication management.6

       X.S., who was almost nine years old, received outpatient therapy, medication

management, and in-home counseling services. S.S., who was six years old, also received

outpatient counseling and medication management. X.S. and S.S. had improved behaviorally

since entering foster care.

       Dr. Eric Freeman, the children’s pediatrician, first started treating them when they were

in the custody of mother and father. The biggest concerns for Dr. Freeman had been the

children’s behavior and chronic anemia. To address the behavioral concerns, Dr. Freeman

referred R.K. and X.S. for psychological evaluations; the children completed the evaluations, but

the parents did not follow through with the recommendations. To address the anemia,

Dr. Freeman prescribed an iron supplement for the children. The parents were not always

compliant with the children’s medication or nutrition; however, once the children entered foster

care, Dr. Freeman noticed that the “anemia issues almost self-corrected without medical

management.”

       At the conclusion of the Department’s evidence, mother moved to strike, which the

circuit court denied. Mother presented evidence that in addition to the three children who are the

subject of this appeal, she had three other children and was pregnant with her seventh child. She




       5
           Father admitted to hitting R.K. on his hand but nowhere else. Father admitted hitting
mother.
       6
           The Department was setting up in-home counseling for R.K.

                                                -6-
had custody of her youngest child, a one-year-old daughter, who was born substance-exposed.7

As a result, mother received ongoing child protective services through Henrico County

Department of Social Services. Mother testified that she was a “good mother” and did not want

her parental rights terminated. At the time of the hearing, mother was unemployed and living

with a friend. Mother had lupus and took prescription medicine for “pain management.”

        At the conclusion of all of the evidence, mother renewed her motion to strike, which the

circuit court denied. After hearing the parties’ arguments, the circuit court terminated mother’s

parental rights to the children under Code § 16.1-283(B) and (C)(2). This appeal followed.

                                             ANALYSIS

        “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.’” Castillo v. Loudoun Cty. Dep’t of Family Servs., 68 Va. App. 547, 558 (2018)

(quoting Logan v. Fairfax Cty. Dep’t of Human Dev., 13 Va. App. 123, 128 (1991)). “Where, as

here, the court hears the evidence ore tenus, its finding is entitled to great weight and will not be

disturbed on appeal unless plainly wrong or without evidence to support it.” Fauquier Cty. Dep’t

of Soc. Servs. v. Ridgeway, 59 Va. App. 185, 190 (2011) (quoting Martin v. Pittsylvania Cty.

Dep’t of Soc. Servs., 3 Va. App. 15, 20 (1986)).

        Mother argues that the circuit court erred in finding that the evidence was sufficient to

terminate her parental rights because “no investigation of her current circumstances took place and

no services were offered to her to attempt to assess or rehabilitate her situation.” Mother asserts that

the parent-child relationship should have been preserved.




        7
         Mother’s twelve-year-old child had been adopted, and her four-year-old child lived with
her and his biological father.

                                                 -7-
       Code § 16.1-283(B) states a parent’s parental rights may be terminated if:

               1. The neglect or abuse suffered by such child presented a serious
               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. In making this determination, the
               court shall take into consideration the efforts made to rehabilitate
               the parent or parents by any public or private social, medical,
               mental health or other rehabilitative agencies prior to the child’s
               initial placement in foster care.

       “[T]he statutory definitions of an abused or neglected child do not require proof of actual

harm or impairment having been experienced by the child. The term ‘substantial risk’ speaks in

futuro . . . .” Farrell v. Warren Cty. Dep’t of Soc. Servs., 59 Va. App. 375, 416 (2012) (quoting

Jenkins v. Winchester Dep’t of Soc. Services, 12 Va. App. 1178, 1183 (1991)). “[S]ubsection B

[of Code § 16.1-283] ‘speaks prospectively’ and requires the circuit court to make a judgment

call on the parent’s ability, following a finding of neglect or abuse, to substantially remedy the

underlying problems.” Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 270-71 (2005)

(quoting City of Newport News Dep’t of Soc. Servs. v. Winslow, 40 Va. App. 556, 562-63

(2003)). “Virginia’s jurisprudence recognizes that ‘past actions and relationships over a

meaningful period serve as good indicators of what the future may be expected to hold.’”

Farrell, 59 Va. App. at 425 (quoting Winfield v. Urquhart, 25 Va. App. 688, 695-96 (1997)); see

also Geouge v. Traylor, 68 Va. App. 343, 375 (2017).

       Here, the Department presented extensive evidence regarding the family’s history of

domestic violence and mother’s mental illness. The Department previously had removed the

children from the parents’ custody and provided numerous services to the parents. Mother,

however, did not comply with the services offered and was never in a position to care for the

children. The children were returned briefly to father’s custody until the Department had to


                                                -8-
remove the children again in December 2017, after father was incarcerated for a “road rage

incident” against a former domestic partner and mother was not capable of raising the children.

Although she claimed to have been in counseling for five years, she never provided

documentation of her counseling and admitted that she was only seeing her counselor on an

as-needed basis while she was pregnant.

       The children had significant needs and were placed in foster care. Once in foster care,

the children’s anemia improved, and all three children started therapy. R.K. required admittance

into a residential treatment facility to meet his behavioral and psychological needs, while X.S.

and S.S. received outpatient therapy. This evidence supported the circuit court’s finding that the

children had suffered from “chronic abuse” in the parents’ care, which caused “severe and

irreparable harm” to them.

       Furthermore, “Code § 16.1-283(B) requires only that the circuit court consider whether

rehabilitation services, if any, have been provided to a parent. Nothing in Code § 16.1-283 or the

larger statutory scheme requires that such services be provided in all cases as a prerequisite to

termination under subsection B.” Toms, 46 Va. App. at 268. The Department previously had

provided services to the parents. Mother did not comply with the services, and although she

testified that she was in counseling, she remained emotionally and mentally unstable and tested

positive for drug use. Her instability led to the children returning to foster care after father was

arrested for the “road rage incident.” Contrary to mother’s arguments, the Department was not

required to provide additional services.

       The children had spent a majority of their lives in foster care. “It 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.” Tackett v. Arlington Cty. Dep’t of




                                                -9-
Human Servs., 62 Va. App. 296, 322 (2013) (quoting Kaywood v. Halifax Cty. Dep’t of Soc.

Servs., 10 Va. App. 535, 540 (1990)).

       Based on the record, the circuit court did not err in terminating mother’s parental rights

under Code § 16.1-283(B). “When a trial court’s judgment is made on alternative grounds, we

need only consider whether any one of the alternatives is sufficient to sustain the judgment of the

trial court, and if so, we need not address the other grounds.” Kilby v. Culpeper Cty. Dep’t of

Soc. Servs., 55 Va. App. 106, 108 n.1 (2009); see also Fields v. Dinwiddie Cty. Dep’t of Soc.

Servs., 46 Va. App. 1, 8 (2005) (the Court affirmed termination of parental rights under one

subsection of Code § 16.1-283 and did not need to address termination of parental rights

pursuant to another subsection). Therefore, we do not need to consider whether the circuit court

erred in terminating mother’s parental rights pursuant to Code § 16.1-283(C)(2).

                                         CONCLUSION

       For the foregoing reasons, the circuit court’s ruling is summarily affirmed. Rule 5A:27.

                                                                                         Affirmed.




                                              - 10 -
