                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Frank, Huff and Senior Judge Haley
UNPUBLISHED



              MARIA AGUILAR
                                                                               MEMORANDUM OPINION*
              v.     Record No. 1249-14-3                                           PER CURIAM
                                                                                 SEPTEMBER 30, 2014
              HARRISONBURG ROCKINGHAM
               SOCIAL SERVICES DISTRICT


                                 FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
                                              Bruce D. Albertson, Judge

                               (Sherwin John Jacobs, on brief), for appellant. Appellant
                               submitting on brief.

                               (Rachel Errett Figura, Assistant County Attorney;
                               Warren A. Picciolo, Guardian ad litem for the minor child, on brief),
                               for appellee. Appellee and Guardian ad litem submitting on brief.


                     Maria Aguilar (hereinafter “mother”) appeals the termination of her residual parental

              rights to her child, S.A. Mother asserts the trial court erred in finding that the Harrisonburg

              Rockingham Social Services District (hereinafter “HRSS”) proved by clear and convincing

              evidence S.A.’s abuse presented a serious and substantial threat to her life, health or

              development and that it was not reasonably likely that the conditions resulting in such neglect or

              abuse could be substantially corrected or eliminated so as to allow S.A.’s safe return to mother.1

              For the reasons stated, we affirm the trial court’s decision.


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                       Mother also asserts the trial court erred in finding the termination of residual parental
              rights was justified under Code § 16.1-283(C)(2). Code § 16.1-283(B) and 16.1-283(C)(2) are
              “individual bases upon which a petitioner may seek to terminate residual parental rights.” City
              of Newport News Dep’t of Soc. Servs. v. Winslow, 40 Va. App. 556, 563, 580 S.E.2d 463, 466
              (2003). Upon concluding that termination of parental rights under one subsection of Code
              § 16.1-283 is warranted, however, we need not consider whether termination was appropriate
                                                Background

       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.’” Toms v. Hanover Dep’t of Soc. Servs., 46

Va. App. 257, 265-66, 616 S.E.2d 765, 769 (2005) (quoting Fields v. Dinwiddie Cnty. Dep’t of

Soc. Servs., 46 Va. App. 1, 7, 614 S.E.2d 656, 659 (2005)). On February 14, 2013, social worker

Mary Lou Froude informed mother that seven-year-old S.A. had reported that mother’s boyfriend,

Teodoro Cruz, had sexually molested S.A. since she was in pre-kindergarten. With an interpreter

present, Froude spent over thirty minutes providing mother with the details of the abuse. Froude

informed mother Cruz had to leave mother’s home “that night” and that mother should permit S.A.

to have “absolutely no contact with him.”

       The following day, Froude visited mother in her home and reiterated S.A. could have no

contact with Cruz. On February 21, 2013, Froude petitioned for a protective order prohibiting

contact between S.A. and Cruz. The juvenile and domestic relations district court issued the order

on February 27, 2013.

       An abuse and neglect hearing was scheduled for March 13, 2013, but on March 9, 2013,

S.A. was hospitalized in Charlottesville for a ruptured appendix. Neither mother nor Cruz appeared

for the hearing. Instead, on the day prior to the hearing, mother submitted a medical note asking

that she be excused so that she could care for her daughter. On March 12, 2013, S.A. was

discharged from the hospital. When Froude visited mother’s home the following day, she




under another subsection. Fields v. Dinwiddie Cnty. Dep’t of Soc. Servs., 46 Va. App. 1, 8, 614
S.E.2d 656, 659 (2005). Here, because we conclude that the trial court did not err in terminating
mother’s residual parental rights under Code § 16.1-283(B), we need not review its decision to
terminate her parental rights under subsection C.

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discovered mother had taken her two daughters out of school, gathered their belongings, and moved

out of their trailer.

        Suspecting mother had driven the children to the home of Cruz’s mother in Texas, Froude

notified Texas authorities. Upon investigating, the Texas authorities found Cruz, mother, and

mother’s two daughters in the home. The home was located close to the Mexican border. Cruz was

arrested. The two girls were placed in the custody of Texas social services on March 14, 2013.

When Froude and another social worker flew to Texas on March 18, 2013 to retrieve the girls, they

found S.A. in pain, pale, and clutching her right side. Mother acknowledged to social worker Sarah

Davis she had failed to give S.A. the medications prescribed upon S.A.’s release from the hospital.

        S.A.’s incision abscessed, and she required emergency surgery on March 20, 2013. She was

placed in the intensive care unit for several days. After remaining in the hospital for approximately

a week, S.A. was discharged and returned to her foster home.

        Initially, HRSS established a goal of returning S.A. home, with a concurrent goal of a

relative placement. However, during a counseling session in April 2013, mother reported she did

not believe Cruz should be punished and that the sexual assault claims by her daughter were the

result of a “misunderstanding.” She stated that Cruz was a “great man.”

        Mother also lied to her therapist about the frequency and nature of her contact with Cruz.

While mother told therapist Ana Arias that she had had a “few” phone conversations with Cruz in

which she “yell[ed]” at him, Arias discovered mother had frequently conversed with Cruz during

his incarceration. In late May 2013 Arias confronted mother and told mother she had listened to

jailhouse recordings of mother’s conversations with Cruz. The couple declared their love for each

other during the conversations and made plans for the future. Cruz reassured mother he would

return after he was deported and had a “job lined up in Philadelphia.” Mother offered to help Cruz




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financially in retaining a better criminal defense attorney. Cruz told mother “next time we’ll take

[the children] to Mexico and I’d like to see the fucking government follow us there.”

        When mother’s psychological evaluation was completed in June 2013, it noted mother had a

dependent personality, “idealized” Cruz, and did “not want to believe the sexual abuse occurred.”

Mother appeared on behalf of Cruz in criminal proceedings in October 2013 and testified she saw

no evidence he had touched S.A. inappropriately and that she did not believe he would do so.

        On October 31, 2013, HRSS established a new goal of adoption and terminating mother’s

parental rights.

        At the time of the termination hearing, S.A.’s counselor, Jenny Kusyzk, testified that S.A.

suffered from post traumatic stress disorder. She explained that S.A. and her sister were living with

foster parents experienced in dealing with victims of trauma and the need for ongoing support

services. Kusyzk noted that S.A. was attached to her foster parents and had “nightmares about

leaving.” Kusyzk also observed that the foster parents represented a potential adoptive home for

S.A.

        Following her placement with her foster parents, S.A. was “healing” and earning good

grades in school. She reported she was “terrified” of Cruz, against whom she testified in criminal

proceedings. She remained fearful he would hurt her and her mother, and expressed concern her

mother would not protect her or her sister if they returned home.

        At the conclusion of the hearing, the trial court found the evidence sufficient to terminate

mother’s residual parental rights under Code § 16.1-283(B) and Code § 16.1-283(C)(2). This

appeal followed.

                                                  Analysis

        The “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, 28-29

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(1991), and we presume the trial court “‘to have thoroughly weighed all the evidence, considered

the statutory requirements, and made its determination based on the child’s best interests,’”

Logan v. Fairfax Cnty. 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 (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 Peple v. Peple, 5 Va. App. 414,

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

       Code § 16.1-283(B) provides that the residual parental rights of a parent of a child found

by the court to be neglected or abused and placed in foster care as a result of court commitment

may be terminated if clear and convincing evidence proves that it is in the best interests of the

child and that:

                  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.

       “[S]ubsection B ‘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, 46 Va. App. at 270-71, 616 S.E.2d at 772 (internal citation and

footnote omitted). Here, mother failed to protect S.A. against long-standing sexual abuse and,

despite a protective order and repeated instructions to keep Cruz away from S.A., secretly left

Virginia and ignored S.A.’s physical and emotional needs to resume a relationship with Cruz.

Mother, who clearly understood the emergency protective order required her to appear in court


                                                   -5-
on March 13, 2013, used S.A.’s fragile health as a means to defy the court order and Froude’s

instructions to keep S.A. away from Cruz.

       Even after S.A. was removed from mother’s custody, and suffered post-surgical

complications that required ICU treatment, mother placed her own needs above those of her

daughter. While mother suggested to her therapist her contact with Cruz was hostile and limited,

she spoke with him frequently, professed her love for him, and discussed plans for their future

upon his release. Even after mother received psychological counseling, and even though S.A.’s

abuse was severe enough to cause S.A.’s post traumatic stress disorder, mother refused to

acknowledge her daughter’s abuse and testified on Cruz’s behalf at his criminal trial. Cruz was

acquitted and released from jail, leaving S.A. “terrified” he would hurt her again.

       “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.”

Kaywood v. Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990).

               Virginia law recognizes the “maxim that, sometimes, the most
               reliable way to guage a person’s future actions is to examine those
               of his past.” Petry v. Petry, 41 Va. App. 782, 793, 489 S.E.2d 458,
               463 (2003). “As many courts have observed, one permissible
               ‘measure of a parent’s future potential is undoubtedly revealed in
               the parent’s past behavior with the child.” Id. (citation omitted).
               “No one can divine with any assurance the future course of human
               events. Nevertheless, past actions and relationships over a
               meaningful period serve as good indicators of what the future may
               be expected to hold.” Winfield v. Urquhart, 25 Va. App. 688,
               696-97, 492 S.E.2d 464, 467 (1997) (citations omitted).

Toms, 46 Va. App. at 267-68, 616 S.E.2d at 770.

       Based on this record, the trial court was entitled to conclude that mother was unwilling to

sacrifice her relationship with Cruz in order to help S.A. recover physically and emotionally and,

despite counseling, did not intend to protect her daughter from abuse in the future. On the

contrary, the evidence proved mother continued to place S.A. at risk by refusing to support her


                                                -6-
daughter emotionally, by assisting Cruz in his release from jail, and by planning to include him

in the family’s future. By contrast, S.A. was happy, stable, and “healing” in her foster home.

       Thus, the evidence is overwhelming that termination of mother’s parental rights was in

S.A.’s best interests, that the neglect and abuse of S.A. was serious and presented a substantial

risk to her life, health, and development, and that, despite counseling services, mother was

unwilling and unable to substantially remedy the conditions that resulted in S.A.’s neglect or

abuse so as to allow S.A.’s safe return home within a reasonable period of time.

       Accordingly, we affirm the decision of the circuit court.

                                                                             Affirmed.




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