                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Felton and Senior Judge Coleman
Argued at Richmond, Virginia


RICHMOND DEPARTMENT OF SOCIAL SERVICES
                                                              MEMORANDUM OPINION* BY
v.     Record No. 1650-03-2                                   JUDGE WALTER S. FELTON, JR.
                                                                     JULY 13, 2004
VICTORIA ENRIQUEZ


                  FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                               Randall G. Johnson, Judge

                 Evelyn B. Meese, Assistant City Attorney (Mark E. Yeaker,
                 Guardian ad litem for the minor child; Office of the City Attorney,
                 on briefs), for appellant.

                 Ronald R. Tweel (Elizabeth P. Coughter; Peter McIntosh; Michie,
                 Hamlett, Lowry, Rasmussen & Tweel, P.C., on brief), for appellee.


       The Richmond Department of Social Services (RDSS) appeals the trial court’s denial of

its petition to terminate Victoria Enriquez’s residual parental rights to her son, D.L., and its

denial of RDSS’s petition to adopt a permanent foster care service plan with a goal of adoption

for D.L. RDSS contends that its evidence was sufficient to support its petitions to terminate

Enriquez’s parental rights and to approve its foster care service plan. RDSS also argues that the

trial court incorrectly interpreted the statutory requirements for termination under Code

§ 16.1-283(B) and 16.1-283(C)(2) and that it erred in finding that Code § 16.1-283(E) as applied

in these proceedings was an unconstitutional ex post facto law. We affirm the judgment of the

trial court in denying the termination of Enriquez’s parental rights to D.L., and in refusing to

adopt RDSS’s foster care service plan for D.L. with a goal of adoption. In affirming the trial


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
court’s judgment that RDSS failed to meet its burden of proving by clear and convincing

evidence that it was in D.L.’s best interest to terminate Enriquez’s parental rights pursuant to

Code § 16.1-283(E)(iv), we conclude that the same evidence by necessity would not be sufficient

to support termination under the aggravated abuse requirements of Code § 16.1-283(E)(iv). It is

therefore not necessary for us to address the validity of RDSS’s attempted amendment to add

Code § 16.1-283(E)(iv) after Enriquez appealed to the circuit court.1

                                        I. BACKGROUND

       Because this memorandum opinion carries no precedential value and the parties below

are fully conversant with the record, we cite only those facts necessary to a disposition of the

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. Logan v. Fairfax County Dep’t of

Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991). Victoria Enriquez, who at age

15 became pregnant following a rape, gave birth to D.L. on November 15, 1997. The identity of

the child’s biological father is unknown. Enriquez and D.L. began living with Yasser Aramin

shortly after D.L.’s birth. At that time, Enriquez and Aramin resided in Chicago, Illinois. They

subsequently relocated to Richmond, where Aramin owns and runs a business. At the time of

trial, Enriquez and Aramin had three children together and she was pregnant with a fourth. They

are not legally married.

       In May 2001, RDSS removed D.L. from Enriquez’s care after receiving complaints that

he was being physically abused. RDSS placed D.L. in foster care, and he has received treatment

for various developmental delays and emotional abuse. When RDSS initially removed D.L.


       1
          In M. G. v. Albemarle County, 41 Va. App. 170, 583 S.E.2d 761 (2003), this Court
noted that the trial court “implicitly refused to amend the petition and did not consider whether
termination could occur based on a finding of aggravated circumstances under subsection
(E)(iv)” where the original petition filed in juvenile and domestic relations district court occurred
prior to the amendment of this provision. Id. at 175 n.2, 583 S.E.2d at 763 n.2.
                                                  -2-
from the home, the goal of its foster care service plan was to return the child to Enriquez with a

target date of May 16, 2002.

       Following the child’s removal, RDSS referred Enriquez and Aramin to various agencies

and programs, including Stop Child Abuse Now (SCAN) classes, individual counseling and

domestic violence counseling, for regular visitation with D.L., and for stabilization services for

the children remaining in the couple’s home. RDSS also arranged for Enriquez to have a

psychological evaluation.

       On January 16, 2002, four months before its target date of May 16, 2002 to return D.L. to

Enriquez’s care, RDSS revised its initial foster care service plan from return to Enriquez to

adoption and filed the recommended plan with the juvenile court. The revised plan retained the

same target date of May 16, 2002. Thereafter, no additional services were offered to Enriquez.

Proceeding with its goal of adoption, RDSS petitioned the juvenile and domestic relations district

court to terminate Enriquez’s parental rights pursuant to Code § 16.1-283(B), (C)(1), (C)(2), and

(D). On May 14, 2002, a little over a year after D.L.’s placement in foster care, the juvenile and

domestic relations district court approved RDSS’s foster care service plan with the goal of

adoption pursuant to Code § 16.1-281. It also granted RDSS’s petition to terminate the parental

rights of Enriquez. The court ordered that custody of D.L. remain with RDSS. Enriquez

appealed the decisions to the circuit court. On February 10, 2003, RDSS amended its petition to

terminate Enriquez’s parental rights to add Code § 16.1-283(E)(iv), alleging that Enriquez

subjected D.L. to “aggravated circumstances.” This amendment occurred after Enriquez timely

appealed the ruling of the juvenile and domestic relations district court terminating her parental

rights and within ten days of the scheduled de novo trial in the circuit court.

       On February 21 and 24, 2003, the trial court received evidence in the de novo

proceedings ore tenus. The record reflects that when D.L. was removed from Enriquez’s care,

                                                -3-
he was taken to the hospital for observation and evaluation. Medical records from that

evaluation reflect that D.L suffered from numerous injuries consistent with abuse. However,

none of the injuries required medical treatment. The physician who examined D.L. at the

hospital testified that, in his opinion, many of D.L.’s injuries were not accidental in nature and

that “the child was abused.” From the evidence presented to it, the trial court found that while

Enriquez did not personally inflict any of the injuries that D.L. suffered, she was aware of the

abuse and did not interfere to prevent it from occurring.

       Following RDSS’s presentation of its case-in-chief, RDSS withdrew its petition to

terminate Enriquez’s parental rights under Code § 16.1-283(C)(1) and 16.1-283(D). The trial

court then granted Enriquez’s motion to strike RDSS’s evidence on its petitions to terminate her

parental rights under Code § 16.1-283(B) and 16.1-283(C)(2). It found that RDSS “failed to

prove that it had made reasonable and appropriate efforts to rehabilitate Victoria Enriquez or to

strengthen the parent-child relationship as required by Code § 16.1-283(B) and 16.1-283(C)(2).”

Citing Code § 16.1-283(B), the trial court found that it was “not able to say at this point that it’s

not reasonably likely that the conditions that resulted in such abuse and neglect can be

substantially corrected.” In its final order, the trial court also dismissed RDSS’s petition under

the “aggravated circumstances” prong of Code § 16.1-283(E)(iv), finding that this subsection

could not be applied retroactively to the circumstances in this case.

       The trial court ordered that D.L. remain in temporary custody of RDSS in foster care, and

remanded the matter to the juvenile and domestic relations district court for such further

proceedings as it might deem appropriate. RDSS appealed the various judgments of the trial

court to this Court.




                                                 -4-
                                           II. ANALYSIS

        The right of a parent “in the care, custody, and control” of her child is one of the oldest of

the fundamental liberty interests recognized by the courts. Troxel v. Granville, 530 U.S. 57, 65

(2000) (citing Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925)). The Due Process

Clause of the Fourteenth Amendment guarantees a parent’s liberty interest in “the

companionship, care, custody and management of his or her children.” Stanley v. Illinois, 405

U.S. 645, 651-52 (1972); see also Santosky v. Kramer, 455 U.S. 745, 751 (1982). However, this

constitutional right is not absolute. It must be balanced against competing legitimate state

interests to protect the welfare of its citizens, including protecting children from abuse and

neglect in the home. Lassiter v. Dep’t Soc. Serv. of Durham City, 452 U.S. 18, 27 (1981); see

also Stanley, 405 U.S. at 652-53. The Virginia Supreme Court has recognized the significance

of this balancing of interests, noting that:

                [The Court’s] 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 . . . . 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 Dep’t of Human Res., 220 Va. 921, 926, 265 S.E.2d 692, 695 (1980).

        The General Assembly enacted Code § 16.1-283 to provide a framework for determining

the circumstances under which the Commonwealth may sever parental rights to a child. The

statute provides for a careful balancing of the parent’s constitutionally protected right in the care

and custody of her child, with the Commonwealth’s interest in protecting the child from harm. A

parent’s rights to her child may be terminated only if “clear and convincing evidence”

demonstrates that the circumstances that caused the Commonwealth to remove the child from the

parent cannot be remedied within a reasonable period of time. See Code § 16.1-283(B). Clear
                                                 -5-
and convincing evidence is “that measure or degree of proof which will produce in the mind of

the trier of facts a firm belief or conviction as to the allegations sought to be established. It is

intermediate, being more than a mere preponderance, but . . . [less than] a reasonable doubt . . . .”

Gifford v. Dennis, 230 Va. 193, 198 n.1, 353 S.E.2d 371, 373 n.1 (1985).

          This high burden of proof is essential as “[t]he termination of parental rights is a grave,

drastic, and irreversible action. When a court orders termination of parental rights, the ties

between the parent and child are severed forever, and the parent becomes ‘a legal stranger to the

child.’” Lowe v. Dep’t of Pub. Welfare of City of Richmond, 231 Va. 277, 280, 343 S.E.2d 70,

72 (1986) (quoting Shank v. Dep’t of Soc. Servs., 217 Va. 506, 509, 230 S.E.2d 454, 457

(1976)); see Weaver, 220 Va. at 926, 265 S.E.2d at 695; see also Santosky, 455 U.S. at 769

(requiring “clear, positive and convincing evidence,” for termination of parental rights by the

state).

                                    A. THE MOTION TO STRIKE

          After the close of RDSS’s case-in-chief, the trial court sustained Enriquez’s motion to

strike the evidence presented by RDSS as failing to prove, by clear and convincing evidence, that

it was in the child’s best interests to terminate Enriquez’s parental rights as required under Code

§ 16.1-283(B) and 16.1-283(C)(2). RDSS contends that the trial court was plainly wrong and

that it erred in requiring it to provide reasonable and appropriate efforts to assist Enriquez in

removing those conditions that led to the placement of D.L. into foster care. RDSS also argues that

it presented to the trial court clear and convincing evidence to support its petitions for termination.

Our Supreme Court has stated that

                 [w]hen the sufficiency of a plaintiff’s evidence is challenged upon
                 a motion to strike the evidence at the conclusion of the plaintiff’s
                 case-in-chief, the trial court should in every case overrule the
                 motion where there is any doubt on the question. The trial court
                 must also “give the plaintiff ‘the benefit of all substantial conflict

                                                  -6-
               in the evidence, and all fair inferences that may be drawn
               therefrom.’”

Washburn v. Klara, 263 Va. 586, 590, 561 S.E.2d 682, 685 (2002) (citations omitted). Applying

these principles, and considering the evidence presented and all inferences fairly drawn

therefrom in the light most favorable to RDSS, the trial court concluded that RDSS had failed to

prove that it was in D.L.’s best interest to terminate the parental rights to the only known parent

he had. It also noted that RDSS “had failed to demonstrate that it had made reasonable and

appropriate efforts to rehabilitate Enriquez and strengthen the parent-child relationship.” The

trial court further noted that from the evidence RDSS had presented in its case-in-chief, that

               [a]lthough [RDSS] had offered some services, . . . it had not
               offered enough. With regard to those services that were
               offered, . . . Enriquez fully took advantage of them, attending
               parenting classes and therapy provided. In essence, . . . [RDSS]
               gave up too fast on Enriquez and did not properly balance the
               interest of Enriquez and [D.L.] while seeking to preserve the
               family.

       Here, the trial court found there was sufficient evidence to support a finding that D.L. had

been abused and that such circumstances presented a sufficient risk to D.L.’s health and safety to

warrant his removal by RDSS. It stated, “I don’t have any problems with finding at this stage of

the evidence giving the Department the benefit . . . that the neglect or abuse suffered by [D.L.]

was presented as serious and substantial threat to his life, health, and development.” It

concluded, however, that RDSS had not met its burden, required by Code § 16.1-283(B) and

16.1-283(C)(2), of proving by clear and convincing evidence that Enriquez had failed to remedy

the conditions which led to D.L.’s removal. It was not necessary for the trial court to determine

that the child should be returned to Enriquez’s immediate care, as long as it concluded that her

efforts made it reasonably likely that the child’s safe return could occur within a reasonable

period of time. A “reasonable period of time” must be determined from the individual factors

and circumstances found in the particular case being considered. Kaywood v. Halifax County

                                                -7-
Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990) (citation omitted).

Determining what period of time is “reasonable” lies within the sound discretion of the trial

court. See Knox v. Lynchburg Div. Soc. Serv., 223 Va. 213, 223, 288 S.E.2d 399, 404 (1982).

       Here, in considering the motion to strike RDSS’s evidence, the trial court properly

weighed the evidence presented by RDSS, including the testimony of Enriquez whom it called as

a witness, as to the reasonable efforts made by Enriquez to correct or eliminate the conditions

that resulted in the abuse. These efforts included her participation in the programs and services

recommended by RDSS after the child was removed. RDSS presented evidence that Enriquez

and Aramin attended all fourteen weekly SCAN classes. While no “one-on-one” parenting

classes were offered to Enriquez, she attended “one-on-one” sessions with the director of

community violence services. RDSS also presented evidence that Enriquez began individual

counseling in July 2002, even after the juvenile and domestic relations district court granted the

petitions to terminate her parental rights. She also visited with D.L. on a bi-weekly basis. The

social worker, who arranged the visits, testified that D.L. did fine with the visits with his mother.

The foster family also reported that D.L. did fine with the visits. Enriquez frequently brought

D.L.’s siblings along, and the children would play together. She attended all of the scheduled

visits with her son, and asked for more frequent visitation and for longer visits with D.L.

       RDSS also presented evidence from the psychologist, who performed a one-day

evaluation of Enriquez. She testified that Enriquez suffered from situational anxiety disorder

that made her less likely to stand up to Aramin, but testified that the condition would likely

dissipate over time. The psychologist further testified that Enriquez had learned a lot from the

parenting classes. She did not evaluate Enriquez for the purpose of termination of parental

rights. She added, however, that had she evaluated Enriquez for that purpose, her evaluation

process would have been more extensive and would have occurred over several sessions.

                                                -8-
          When called as a witness in RDSS’s case-in-chief, Enriquez testified that she did not

physically discipline her son and that, if he were returned to her, she would be better able to

watch and control him so that he would not suffer any more injury. She also said that she could

leave Aramin if he ever became physically abusive. The record reflects that the trial court found

credible Enriquez’s testimony, as well as that of the other witnesses, that she had benefited from

the parenting programs offered by RDSS. Matters of credibility of witnesses are within the

discretion of the trier of fact, here the trial court, and will not be disturbed on appeal unless

inherently incredible. See Wheeler v. Wheeler, 42 Va. App. 282, 295-96, 591 S.E.2d 698, 705

(2004).

          Based on the record before us, we conclude that the trial court did not err in sustaining

Enriquez’s motion to strike RDSS’s evidence and in finding the evidence insufficient to support

termination of her parental rights to D.L.

          In matters concerning 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.” Farley v. Farley,

9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990). Furthermore, “[w]here, 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.” Martin v. Pittsylvania County

Dep’t of Social Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986). We presume that the trial

court “thoroughly weighed all the evidence, considered the statutory requirements, and made its

determination based on the child’s best interests.” Logan, 13 Va. App. at 128, 409 S.E.2d at 463

(citations omitted). The record reflects that Enriquez attended the programs offered by RDSS. It

also revealed that RDSS changed its foster care service plan goal from returning D.L. to

Enriquez to adoption at a time when Enriquez and Aramin were attending the parenting classes.

Finding that Enriquez “fully took advantage” of the rehabilitative options provided, the trial

                                                  -9-
court reasonably concluded that, “the Department gave up too fast on Enriquez.” Based on the

evidence presented during RDSS’s case-in-chief, the trial court could reasonably conclude that

RDSS failed to provide reasonable and appropriate efforts to assist Enriquez to remedy the

circumstances that led to D.L.’s placement in foster care as required by Code § 16.1-283(C)(2).

       We agree with RDSS that Code § 16.1-283(B) does not require the same level of effort

on its part to provide assistance as does Code § 16.1-283(C)(2). At trial, the trial court properly

noted that Code § 16.1-283(B) merely permits a trial court to consider efforts made to

rehabilitate the parent and that it does not require services be provided by RDSS. Termination of

parental rights pursuant to Code § 16.1-283(B) requires proof that Enriquez failed to respond or

follow “through with appropriate, available and reasonable rehabilitative efforts on the part of

social, medical, mental health or other rehabilitative agencies designed to reduce, eliminate or

prevent the neglect or abuse of the child.” Code § 16.1-283(B)(2)(c).

       The trial court found that RDSS failed to prove by clear and convincing evidence that

Enriquez had failed to make a substantial effort to remedy the conditions that led to D.L.’s

entering foster care as required by Code § 16.1-283(B). We conclude that the record supports

the trial court’s finding that the mother made substantial efforts to remedy the conditions leading

to D.L.’s placement in foster care.

                                      B. CODE § 16.1-283(E)

       RDSS also argues that it presented sufficient evidence to terminate Enriquez’s parental

rights by showing that she subjected D.L. to “aggravated circumstances” as required by Code

§ 16.1-283(E)(iv). It also contends that the trial court erred in holding that legislative

amendments to Code § 16.1-283(E)(iv), that took effect after the proceedings in this case had

been concluded in the juvenile court, did not apply retroactively to these proceedings.




                                                - 10 -
       After Enriquez appealed to the circuit court, RDSS amended its petition to allege that

Enriquez’s parental rights to D.L. be terminated under Code § 16.1-283(E)(iv).

       Code § 16.1-283(E) provides in pertinent part that:

                 The residual parental rights of a parent or parents of a child who is
                 in the custody of a local board or licensed child-placing agency
                 may be terminated by the court if the court finds, based upon clear
                 and convincing evidence, that it is in the best interests of the child
                 and that . . . (iv) the parent has subjected any child to aggravated
                 circumstances.2

(Emphasis and footnote added). Code § 16.1-283(E) also permits the “local board or other child

welfare agency having custody of the child” to avoid the obligation to “make reasonable efforts

to reunite the child with a parent who has been . . . found by the court to have subjected any child

to aggravated circumstances.”

       Because the trial court did not err in finding that the evidence was insufficient for it to

terminate Enriquez’s parental rights under the abuse standard of Code § 16.1-283(B), we


       2
           As used in Code § 16.1-283(E)(iv):

                 “Aggravated circumstances” means torture, chronic or severe
                 abuse, or chronic or severe sexual abuse, if the victim of such
                 conduct was a child of the parent or a child with whom the parent
                 resided at the time such conduct occurred, including the failure to
                 protect such a child from such conduct, which conduct or failure to
                 protect: (i) evinces a wanton or depraved indifference to human
                 life, or (ii) has resulted in the death of such a child or in serious
                 bodily injury to such a child.

                 “Chronic abuse” . . . means recurring acts of physical abuse which
                 place the child’s health, safety and well-being at risk.

                 “Serious bodily injury” means bodily injury that involves
                 substantial risk of death, extreme physical pain, protracted and
                 obvious disfigurement, or protracted loss or impairment of the
                 function of a bodily member, organ or mental faculty.

                 “Severe abuse” . . . may include an act or omission that occurred
                 only once, but otherwise meets the definition of “aggravated
                 circumstances.”

                                                 - 11 -
conclude logically that the same quantum of evidence could not support a termination under the

more aggravated abuse standard of Code § 16.1-283(E)(iv).

                                         CONCLUSION

       Based on our review of the record as a whole, we conclude that the trial court did not err

in striking the evidence of RDSS and dismissing its petitions to terminate the parental rights of

Enriquez to D.L., and in not approving its petition to place D.L. in permanent foster care with a

goal of adoption.

       Accordingly, we affirm the judgment of the trial court.

                                                                                         Affirmed.




                                               - 12 -
