                    COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia

BEVERLY JACKSON
                                      MEMORANDUM OPINION * BY
v.         Record No. 2331-94-4     JUDGE ROSEMARIE ANNUNZIATA
                                         DECEMBER 12, 1995
ALEXANDRIA DIVISION OF SOCIAL SERVICES


          FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                        Donald H. Kent, Judge

           Clare L. McCulla for appellant.
           Molly S. Dietrich, Assistant Commonwealth's
           Attorney (John E. Kloch, Commonwealth's Attorney,
           on brief), for appellee.

           Dorathea J. Peters (Peters & Mullins, on brief),
           Guardian ad litem for Melody Jackson, an infant.



     The appellant, Beverly Jackson ("mother"), appeals the

Alexandria Circuit Court's decision to terminate her residual

parental rights to her daughter, Melody Jackson ("child").     The

mother alleges that the evidence was insufficient to terminate

her residual parental rights pursuant to Virginia Code § 16.1-

283(B).   For the reasons that follow, we reverse.

     The child was born cocaine positive on September 21, 1991,

and Alexandria Department of Social Services ("DSS") was granted

legal custody of her soon thereafter.   For most of her life, the

child remained in foster care while her mother made efforts to

complete drug treatment programs prescribed by DSS.   By
mid-September 1993, DSS had concluded the mother's condition had
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
not sufficiently progressed and sought to change the foster care

service plan goal to adoption and to terminate mother's parental

rights.    The family court approved the service plan goal of

adoption in December 1993 but because of the bond between the

mother and her child, the parental rights were not terminated at

that time.    The court continued the matter until June 1994 to

allow the mother to prove that she had remained substance free

and had actively participated in treatment. In June 1994 it

entered a final judgment terminating the mother's residual

parental rights.    Following a September 26, 1994 hearing, the

circuit court reached the same result.
        There is no evidence that, after the child's birth, the

mother physically harmed her in any way.    During the child's time

in foster care, the mother maintained a strong visitation record,

and the two carried on a normal mother/daughter relationship.

Indeed, both the DSS and the family court judge recognized a

positive bond between the mother and her child.

        The evidence shows that the mother participated in various

treatment programs, with varying degrees of success, since early

1992.    She participated in two inpatient programs and maintained

fairly regular attendance at Narcotics Anonymous meetings

following her discharge from the second program.    The mother

received somewhat sporadic help from Substance Abuse Services in

both Alexandria and Arlington, but her treatment gained

regularity over time.    By March 1994, the mother was attending




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weekly treatment sessions with the Alexandria Substance Abuse

Services.    After moving to Arlington in June 1994 the mother

contacted Arlington Substance Abuse Services.    From August 1994

until the hearing in late September, the mother attended weekly

sessions at Arlington Substance Abuse Services, attended weekly

group counseling sessions, and went to Narcotics Anonymous

meetings two times per week.
        Unquestionably, the mother had a drug problem prior to her

treatment programs.    And, at first, the mother experienced a

rocky road to recovery, relapsing within two weeks of her

discharge from the first inpatient program in July 1992 and

continuing to use drugs until entering the second inpatient

program in March 1993.    However, there is no evidence that the

mother had used drugs in the nearly eighteen months since that

time.    The evidence reflects that, although she was not enrolled

continually in any one treatment program, beginning March 1993

until the date her parental rights were terminated, the mother

underwent numerous drug tests, often random, all of which were

negative.    At the circuit court hearing, witnesses who had

observed the mother's previous drug use testified that the mother

had not used drugs since March 1993.    Betty Richardson-Evans, an

expert in substance abuse counselling testified that she saw no

sign of the mother using drugs.

        Moreover, the prognosis for the mother's future treatment




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was positive at the time of the hearing.   Although, Ms.

Richardson-Evans testified that people who relapse once are more

likely to relapse again, she opined that the mother would refrain

from using drugs this time.   Ms. Richardson-Evans testified that

the mother was doing all she could to remain drug-free.    The

mother testified that she would continue treatment regardless of

the result of the custody issue, and Ms. Richardson-Evans

testified that she believed the mother would continue drug

treatment regardless of whether her parental rights were

terminated.
     The evidence also shows that the mother had trouble

maintaining either consistent housing or employment during the

period in question.   The mother's continual moving may have been

related to family matters over which she had little control.     She

lived in Fairfax to care for her mother who was dying of cancer.

The subsequent moves also prevented the mother from maintaining

a consistent treatment program because the Substance Abuse

Services are administered by county.

     To terminate residual parental rights under § 16.1-283(B),

the court must make three findings based upon clear and

convincing evidence: (1) that termination is in the child's best

interest; (2) that abuse presented a serious and substantial

threat to the child's life, health, or development; and (3) that

it is not reasonably likely that conditions resulting in abuse

can be corrected to allow the child's safe return within a




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reasonable time.   E.g. Wright v. Alexandria Div. of Social

Servs., 16 Va. App. 821, 826, 433 S.E.2d 500, 503 (1993), cert.

denied, 115 S. Ct. 651 (1994); Kaywood v. Halifax Co. Dept. of

Social Servs., 10 Va. App. 535, 538, 394 S.E.2d 492, 494 (1990).

We agree that the mother's drug use resulted in abuse to the

child that presented a serious and substantial threat to her.

However, we disagree that the evidence clearly and convincingly

showed that terminating the mother's parental rights was in the

child's best interests.   We also disagree that the evidence

clearly and convincingly showed that the mother's condition could

not be corrected to allow the child's safe return within a

reasonable time from the date of the hearing.
     As the DSS stresses, the government's paramount objective is

maintaining the best interests of the child.      Logan v. Fairfax

Co. Dept. of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460,

463 (1991).   As the mother stresses, it is the government's

objective to preserve, whenever possible, the parent-child

relationship.   Lowe v. Dept. of Public Welfare, 231 Va. 277,

280-81, 343 S.E.2d 70, 72 (1986); Weaver v. Roanoke Dept. of

Human Resources, 220 Va. 921, 926, 265 S.E.2d 692, 695 (1980).

Clearly, the two objectives are not necessarily mutually

exclusive: the child's best interest may be served by maintaining

the parent-child relationship.

     The evidence in this case reflects the bond that exists

between the mother and her child.      Throughout the child's life,




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the mother visited the child regularly, and, other than the

mother's drug problems, the two seem to have maintained a normal

parent-child relationship.    We agree that the instability the

child has undergone her entire life does not serve her interests

well.    However, the record does not demonstrate that the child's

interests would be better served by removing the child from her

mother.

        Undoubtedly, the mother's drug use was the condition that

resulted in the abuse of the child.     No evidence suggests that

the mother abused the child in any other way.
        Proof that the mother had abused drugs and had not responded

to or followed through with recommended and available treatment

is prima facie evidence that the mother's condition would not be

corrected to allow the child's safe return within a reasonable

time.    Code § 16.1-283(B)(2)(b).   The mother's somewhat

inconsistent participation in drug treatment programs may

indicate that her drug abuse would not be corrected within a

reasonable time.    However, the mother's success in remaining

drug-free shows that, though her participation may have been

sporadic, she successfully responded to and followed through with

treatment.    At the date of the hearing the mother had been

drug-free for over seventeen months and the prognosis for her

future condition was positive.    The evidence shows that the

mother was well on the road to recovery.    It does not clearly and

convincingly show that, at the date of the hearing, her condition



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would not be corrected within a reasonable time to allow the

child's safe return.

        Given the mother's progress in remaining drug-free and her

positive prognosis for the future, together with the evidence of

a sound and close relationship between the mother and her child,

we conclude that the termination of the mother's rights was

premature and not in the best interests of her child at this

time.
        Accordingly, the judgment of the trial court is reversed.

                                                           Reversed.




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