                               COURT OF APPEALS OF VIRGINIA


Present: Judges Kelsey, Petty and Retired Judge Hodges ∗


MELINDA SPONAUGLE-CANTRELL
                                                                 MEMORANDUM OPINION * *
v.     Record No. 0355-09-3                                            PER CURIAM
                                                                    SEPTEMBER 8, 2009
WISE COUNTY DEPARTMENT
 OF SOCIAL SERVICES


                        FROM THE CIRCUIT COURT OF WISE COUNTY
                                  Joseph R. Carico, Judge

                 (Damie F. Carter, on briefs), for appellant. Appellant submitting on
                 briefs.

                 (Karen T. Mullins; J. Marty Adkins, Guardian ad litem for the minor
                 children; Office of the County Attorney; Adkins & Hunnicutt, on
                 brief), for appellee. Appellee and Guardian ad litem submitting on
                 brief.


       Melinda Cantrell (mother) appeals the trial court’s order terminating her parental rights to

her children. Mother argues that (1) she made substantial improvement toward remedying the

conditions which prompted the removal of her children; (2) the Wise County Department of

Social Services (WCDSS) failed to provide reasonable and appropriate services to assist her in

improving her condition; and (3) there was insufficient evidence to terminate her parental rights.

Upon reviewing the record and briefs of the parties, we conclude that this appeal is without

merit. Accordingly, we affirm the decision of the trial court.



       ∗
        Retired Judge Hodges took part in the consideration of this case by designation pursuant
to Code § 17.1-400(D).
      **
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                          BACKGROUND

       On appeal, we view the evidence in the “‘light most favorable’ to the prevailing party in

the circuit court and grant to that party the benefit of ‘all reasonable inferences fairly deducible

therefrom.’” Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 262, 616 S.E.2d 765, 767

(2005) (quoting Logan v. Fairfax County Dep’t of Human Dev., 13 Va. App. 123, 128, 409

S.E.2d 460, 463 (1991)).

       Mother moved from New York to Virginia in 2004 with three of her four children (the

older children), where she married Jamie Cantrell and had three younger children with him:

twins, J.C. and D.C. (born January 7, 2004), and T.C. (born June 12, 2006). This appeal

challenges the termination regarding the three younger children.

       Mother’s oldest child, seventeen-year-old C.C., testified that she and the other older

children were removed in May 2005, returned in July 2006, and removed again in October 2006,

when the younger children were removed. C.C. recalled the house was dirty and mother “had

mood swings all of the time,” and she would “get really, really angry sometimes,” causing the

older children to hide from her. C.C. described her home situation as “chaos” and explained that

she cared for the younger children because mother “would lay in bed and she wouldn’t want to

get up.”

       Monica Cross, a child protective services worker with WCDSS, testified regarding the

unstable and unsanitary conditions in the home in 2005 and the services provided. Cross

explained that by November 2005, “[e]veryone in the home had a mental health counselor that

they saw on an ongoing basis,” and a parent aide and counselors visited to assist in helping the

parents make the home clean and safe. The family also received medical and mental health

counseling and services.




                                                 -2-
       WCDSS took custody of mother’s children on October 20, 2006, and placed them in

foster care pursuant to an emergency removal petition alleging the children were abused or

neglected. The affidavit described domestic violence by the father in the home, mother’s

inability to care for and protect the children due to the father and her mental state, and mother’s

inability to find alternative housing away from the father. The 2006 affidavit described the home

as unsanitary and reported that the family had received services for the past year through a foster

care worker, but the services did not remedy the problems.

       Darlene Lawson was the foster care social worker for all six of mother’s children at the

time of the removal in October 2006. The twins were two-and-one-half years old and T.C. was

four months old at the time of removal. Lawson recalled that mother was receiving mental

health services and parent aide services at the time and there were “several workers in the home”

to help mother remedy the conditions that caused the removal of the children. Lawson explained

that mother was bipolar and on medications, however, “on a few occasions she would go off of

them.” Despite the services offered, Lawson was concerned that mother could not provide a

stable home and care for herself or the children. Based on her experience working with the

family, Lawson did not feel that mother “could ever provide a stable environment” because she

cannot keep herself stable for any length of time. Lawson explained that mother failed to act

promptly to protect the children in the face of her husband’s long-term abuse and violence.

Although mother attended parenting classes, anger management classes, and mental health

classes, Lawson saw no “progress on how she has used that to provide a more stable

environment for her children, and to establish herself in a more stable life.” Lawson observed

visitation with all six children and described it as chaotic, partly because of mother’s excessive

yelling to discipline them during the one-hour visit. Lawson opined that mother’s “mental health

issues will be up and down.” The three younger children all had medical issues because they

                                                -3-
were born prematurely. They are currently receiving treatment and are now in stable foster

homes. The twins have special needs that are being met in their foster home. WCDSS prepared

two different foster care plans while Lawson was involved in the case.

       The first plans were filed in the juvenile and domestic relations district court (juvenile

court) and reviewed on January 23, 2007, with a goal of relative placement. On August 20,

2007, the juvenile court conducted a foster care review hearing and held that reasonable efforts

had been made by the agency to place the children in accordance with the foster care plans. The

juvenile court approved the plans for relative placement. It directed WCDSS to continue to

utilize reasonable efforts to accomplish the goals of the plan.

       On February 4, 2008, foster care worker James Kinser investigated physical abuse to

mother’s older children and removed the three older children from the home at that time. During

that same month, mother visited a mental health facility due to thoughts of suicide and

depression.

       On March 4, 2008, the juvenile court disapproved the foster care plans of relative

placement and directed that a new plan be submitted by April 1, 2008. On March 18, 2008,

WCDSS filed new foster care plans identifying a permanent goal of adoption. On April 1, 2008,

the juvenile court approved the plans and directed WCDSS to file petitions to terminate mother’s

parental rights.

       On June 13, 2008, twenty months after the children were removed and placed in foster

care, WCDSS filed petitions to terminate mother’s residual parental rights to the three young

children. The juvenile court granted the petitions and terminated mother’s parental rights on

October 27, 2008, just over two years after the date the children were initially removed and

placed in foster care. It based its decision on Code § 16.1-283(C).




                                                -4-
        Mother appealed that decision to the trial court, which conducted an ore tenus hearing on

January 27, 2009. After hearing and considering evidence and argument, the trial court granted

the petitions to terminate mother’s parental rights. It noted that the children had been in foster

care doing well for over two years and that WCDSS provided several services and exhausted

every resource to help mother remedy the conditions. Despite the provision of services and

assistance, the trial court expressed concerns about mother’s past bad judgments, her bipolar

disorder and her ability to control it, past incidents and complaints regarding the children, the

lack of progress in remedying the conditions, and the opinion of mother’s foster care worker

questioning mother’s ability in the future to maintain stability and provide a safe and healthy

environment for the children.

        Code § 16.1-283(C)(2) provides that the residual parental rights of a parent may be

terminated if the trial court finds, based upon clear and convincing evidence, that it is in the best

interests of the child and that

                [t]he parent or parents, without good cause, have 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 efforts of social, medical, mental health
                or other rehabilitative agencies to such end.

Decisions to terminate parental rights under Code § 16.1-283(C)

                hinge not so much on the magnitude of the problem that created
                the original danger to the child, but on the demonstrated failure of
                the parent to make reasonable changes. Considerably more
                “retrospective in nature,” subsection C requires the court to
                determine whether the parent has been unwilling or unable to
                remedy the problems during the period in which he has been
                offered rehabilitation services.

Toms, 46 Va. App. at 271, 616 S.E.2d at 772 (quoting City of Newport News Dep’t of Soc.

Servs. v. Winslow, 40 Va. App. 556, 562-63, 580 S.E.2d 463, 466 (2003)).


                                                -5-
        The trial court’s findings, “‘when based on evidence heard ore tenus, will not be

disturbed on appeal unless plainly wrong or without evidence to support [them].’” Logan, 13

Va. App. at 128, 409 S.E.2d at 463 (quoting Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d

232, 237 (1988)).

        The evidence established that mother received various levels of services for several years,

yet she was unable within a twelve-month period to remedy the conditions that brought the

children into foster care. WCDSS presented clear and convincing evidence that termination was

in the best interests of the children and that mother was unable or unwilling within a reasonable

amount of time to remedy the conditions that brought the children into foster care. Accordingly,

the decision of the trial court is affirmed.

                                                                                         Affirmed.




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