                                 COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Felton and McClanahan
Argued at Alexandria, Virginia


MELISSA McCUTCHEON
                                                             MEMORANDUM OPINION∗ BY
v.         Record No. 0174-03-4                           JUDGE ELIZABETH A. McCLANAHAN
                                                                  MARCH 30, 2004
WARREN COUNTY DEPARTMENT
 OF SOCIAL SERVICES


                        FROM THE CIRCUIT COURT OF WARREN COUNTY
                                   John E. Wetsel, Jr., Judge

                   J. Daniel Pond, III (Napier, Pond, Athey & Athey, P.C.,
                   on brief), for appellant.

                   Neal T. Knudsen (Neal T. Knudsen, P.C., on brief),
                   for appellee.

                   Brian M. Madden, Guardian ad litem for the minor children.


           Melissa McCutcheon appeals an order terminating her residual parental rights with

respect to her four children pursuant to Code § 16.1-283. She contends that the trial court erred

in: (1) finding that the Warren County Department of Social Services (DSS) made reasonable

and appropriate efforts to provide services to her; (2) finding that the circumstances resulting in

the removal of the children will not be substantially corrected within a reasonable time; and,

(3) failing to continue the case and direct DSS to provide further services. For the reasons that

follow, we affirm.




     ∗
         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                              I. Facts

       This case involves the termination of parental rights to four children. Two of the children

were fathered by William McCutcheon.1 At the time of the hearing, appellant was still married

to McCutcheon, though estranged. McCutcheon sexually molested one of the children in May

1999, while the child was in the custody of appellant and Lewis Lohr. Lohr is the father of the

other two children involved in this appeal, and was appellant’s intermittent live-in paramour and

co-parent. There is evidence in the record that appellant had reported Lohr to DSS for physically

abusing the children.2

       Appellant’s history with DSS began in 1996 or 1997 in Culpeper County and continued

when she moved to Orange County in 1997. In 1999, after the sexual assault, Orange County

DSS made founded dispositions concerning two of the children. One of the children was found

to be at high risk for medical neglect, and another was found to be at high risk for physical

neglect. Appellant and Lohr were found, among other things, to lack parenting skills, and to be

unable to provide the children’s minimal needs of shelter, clothing and supervision. The Orange

County DSS also found that appellant did not secure prompt counseling for the child who was

molested.

       In 2000, after appellant, Lohr and the children moved to Warren County, several public

service agencies attempted to provide services to the family. In December 2000, when voluntary

efforts failed to improve the children’s living situation, DSS moved for a protective order. In

March 2001, after finding physical neglect of all the children, and after a doctor reported that one




       1
           William McCutcheon’s parental rights to his children were terminated prior to this case.
       2
          At the time of trial, Lohr was incarcerated for perjury in connection with swearing out a
false criminal complaint against a DSS caseworker.

                                                -2-
of the children may have been sexually abused by Lohr, DSS obtained an emergency removal

order. At the time of removal, appellant and the children were living with Lohr.

       In April 2001, after a preliminary removal hearing, the juvenile and domestic relations

district court found that there was evidence that at least one, if not all, of the children had been

sexually abused, that all of the children suffered from a long history of abuse and/or neglect, and

that the children were being maintained in a “dirty, unhealthy condition.”

       In May 2001, foster care service plans for each of the children were filed. The program

goal of each plan was to return the child home. The responsibilities that appellant was required

to meet in order to achieve the goal for each child were identified as:

               -Schedule and attend individual therapy at Northwestern
               Community Services Board. She is to attend all scheduled
               appointments and follow treatment recommendations (Target date:
               Ongoing).
               -If Ms. McCutcheon chooses to reside with Mr. Lohr, he must have
               successfully completed the Shenandoah Valley Sex Offenders
               treatment program. The Department will not consider returning
               the children if he has not successfully completed the sex offender
               program (Target date: Ongoing).
               -Obtain and maintain adequate housing that consists of at least
               three bedrooms. The house must pass a home safety inspection to
               be performed by the Building Inspector. It is the responsibility of
               Ms. McCutcheon to arrange for building inspection. Any change
               in housing will result in Ms. McCutcheon needing to obtain a new
               building inspection. (Target date: Ongoing).
               -Obtain and maintain employment that can cover all financial
               needs. There is to be no break in employment. If Ms.
               McCutcheon decides to terminate employment, she must have a
               new job to go to immediately. (Target date: Ongoing).
               -Provide monthly verification of her income and expenses. This is
               to include verification of rent payment, electric payment, phone
               payment, and water/sewer payment. (Target date: Ongoing).
               -Attend parenting classes the Department deems appropriate. The
               Department will notify Ms. McCutcheon in writing as appropriate
               classes become available (Target date: Ongoing).
               -Obtain and pay for transportation to all appointments (Target date:
               Ongoing).
               -Schedule and complete a psychological evaluation with
               Dr. Bernard Lewis (Target date: June 8, 2001).

                                                 -3-
                -Will follow and complete all recommendations outlined in
                Dr. Lewis’ evaluation (Target date: Ongoing).
                -Will notify the Department in writing within 5 days of any
                changes in living situation, address, or employment (Target date:
                Ongoing).

The plan also required DSS to provide services for the children’s medical, physical and

psychological needs, and visit them in order to monitor their progress and provide supportive

services. DSS was also required to assist in locating services as requested by the parents.

        A second set of foster care service plans was entered in October 2001, with the goal of

returning the children to appellant. After a foster care review hearing in December 2001, the

district court found that Lohr had a recent episode of sexually deviant behavior toward minor

girls, and ordered appellant to live apart from Lohr.

        By April 2002, after finding appellant non-compliant in addressing the responsibilities as

set out by the foster care plans, DSS entered a new foster care service plan with a goal of

adoption for the children. Appellant had not found stable housing, had not maintained steady

employment, had not provided DSS with a statement of her income on a regular basis, had not

attended therapy at Northwestern Community Services Board, and had not provided changes of

address to DSS. DSS also found that appellant was unwilling to obtain separate housing from

Lohr and that as long as Lohr was in the household, appellant could not provide safe housing for

the children. DSS petitioned for a permanency planning hearing.

        The permanency planning hearing was held on August 30, 2002. After the hearing, the

district court terminated appellant’s parental rights as in the best interests of the children. It

entered an order on September 6, 2002, finding that appellant, pursuant to Code § 16.1-283(C):

                without good cause, has 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 the reasonable and appropriate

                                                 -4-
               efforts of social, medical, mental health or rehabilitative agencies to
               such end.

       Approximately seventeen months after the initial foster case service plans were entered,

the court found that, without justifiable reason, appellant had complied with just two of the

requirements. The chancellor found that the best interests of the children were to place them in

the custody of DSS. The court also found that it was highly unlikely that the circumstances

resulting in the removal of the children would be substantially corrected or eliminated within a

reasonable period of time under Code § 16.1-283(B)(2). He further found that reasonable and

appropriate efforts had been made by DSS to remedy the conditions that led to the initial removal

of the children. The chancellor then terminated appellant’s residual parental rights to the

children.3

                                            II. Analysis

       We view the evidence in the light most favorable to the party prevailing below and grant

to that evidence 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, 463 (1991). “When addressing

matters concerning [children], including the termination of a parent’s residual parental rights, the

paramount consideration of a trial court is the child[ren]’s best interests.” Id. “‘[T]rial courts are

vested with broad discretion in making the decisions necessary to guard and to foster [the

children]’s best interests.’” Id. (quoting Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794,

795 (1990)). The trial judge’s findings, “‘when based on evidence heard ore tenus, will not be

disturbed on appeal unless plainly wrong or without evidence to support it.’” Id. (citation

omitted).



       3
          The guardian ad litem for the children recommended to the trial court, and to this Court
at oral argument, that mother’s residual parental rights be terminated.

                                                -5-
        Code § 16.1-283 establishes the procedures and grounds under which a court may order

the termination of residual parental rights. Pursuant to Code § 16.1-283(B), the court may

terminate a parent’s residual rights to a child who has been neglected or abused and placed in

foster care if the court finds, based upon clear and convincing evidence, that it is in the child’s

best interest 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 . . . .

Prima facie evidence of the conditions set forth in subsection (B)(2) exists when there is proof

that the parent, “without good cause, [has] not responded to or followed through with

appropriate, available and reasonable rehabilitative efforts on the part of social, medical, mental

health or other rehabilitative agencies designed to . . . prevent the neglect . . . of the child.” Code

§ 16.1-283(B)(2)(c).

        The trial court found that the evidence proved by clear and convincing evidence, both,

(1) that DSS made “reasonable and appropriate efforts” to help mother remedy the conditions

“which led to or required continuation of the children’s foster care placement” and, (2) that

appellant, without good cause, failed “to substantially remedy” those conditions. It also found

that “myriad services” were offered to appellant. The evidence established that DSS began

working with mother in 1997, even before it obtained custody of the children. DSS submitted

foster care plans with the goal of returning the children home in April 2001 and again in October

2001. During that time, DSS assisted appellant in obtaining an evaluation and therapy with

Dr. Lewis and Ms. Spresser, respectively. According to the responsibilities that appellant agreed

to in the foster care plans, she was required to follow the treatment recommendations of

                                                 -6-
Dr. Lewis. DSS provided services. Appellant did not follow the treatment recommendations as

required under the foster care plans.

        The evidence also supports the finding that appellant was given ample time and

opportunity to remedy the conditions that led to the removal of the children. Appellant

continued to live with Lohr throughout the course of the case, even though she was warned by

DSS that doing so would place the children at risk. Appellant stated that Lohr was “all she had”

– and she expressed her intent to the court that she wanted to seek return of the children to her

and Lohr. She failed to maintain adequate housing. She failed to follow through on regular

counseling that had been arranged for her. She did not obtain appropriate and regular

employment. She failed to provide DSS with monthly verification of her income and expenses.

She was required to inform DSS of any change in her living situation, yet she failed to inform

DSS when she and Lohr were cohabiting, or even where she was living for long stretches of

time. Appellant admitted that she was not able to take care of the children given her

circumstances and that she needed more time to correct the conditions.

        The record supports the trial court’s finding that DSS presented clear and convincing

evidence that appellant did not substantially remedy the conditions that led to the removal of the

children and that it is not reasonably likely that the conditions which led to the children’s neglect

and/or abuse will be substantially corrected or eliminated within a reasonable period of time.

The evidence supports the trial court’s finding that termination from their mother is in their best

interests and that the trial court did not err in failing to continue the case. For that and the

foregoing reasons, we affirm the judgment of the trial court.

                                                                                             Affirmed.




                                                 -7-
