                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Huff, Judge O’Brien and Senior Judge Haley
UNPUBLISHED


              Argued at Norfolk, Virginia


              SHAUNTAE D. McKIVER
                                                                             MEMORANDUM OPINION* BY
              v.     Record No. 0801-15-1                                    JUDGE MARY GRACE O’BRIEN
                                                                                 DECEMBER 22, 2015
              PORTSMOUTH DEPARTMENT
               OF SOCIAL SERVICES


                              FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                                             Kenneth R. Melvin, Judge

                               Dianne G. Ringer (Bierowicz & Ringer, P.C., on brief), for
                               appellant.

                               Burle U. Stromberg; Cynthia L. Chaing, Guardian ad litem for the
                               infant children (Cheran Cordell; Portsmouth City Attorney’s Office,
                               on brief), for appellee.


                     Shauntae D. McKiver (“appellant”) appeals from a final order terminating her residual

              parental rights to her two children and approving foster care plans with the goal of adoption for

              both children. Appellant assigns the following errors to the court’s decision:

                               1. The trial court erred in finding the evidence sufficient to
                                  terminate McKiver’s residual parental rights and, in
                                  conjunction with that, to approve the goal of adoption, under
                                  section 16.1-283(B) of the Code of Virginia. The evidence
                                  failed to prove that the neglect or abuse suffered by the
                                  children “presents a serious and substantial threat” to their life,
                                  health or development and failed to prove that it is not
                                  reasonably likely that the conditions which resulted in the
                                  neglect or abuse, even if such existed, can be substantially
                                  corrected or eliminated within a reasonable period of time.

                               2. The trial court erred in finding the evidence sufficient to
                                  terminate McKiver’s residual parental rights and, in

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                   conjunction with that, to approve the goal of adoption, under
                   section 16.1-283(C) of the Code of Virginia. The evidence
                   failed to prove that McKiver was unwilling or unable to
                   substantially remedy the conditions which led to the children’s
                   being placed into foster care and that she lacked good cause for
                   same.

       Finding no error, we affirm the ruling of the trial court.

                                       I. BACKGROUND

       On June 27, 2013, the Portsmouth Department of Social Services (“DSS”) received a

referral alleging physical neglect of appellant’s two children, K.M. and H.M., who were three

and one year old, respectively. The referral arose because appellant attempted suicide by taking

an overdose of pills in the presence of the children while they were residing at a homeless shelter

in Norfolk. Appellant was taken to a hospital for treatment, and she and the children were

evicted from the shelter. The identity of the children’s fathers was unknown. Attempts to place

the children with a relative were unsuccessful. Following a brief placement with a friend, the

children came into DSS custody on July 12, 2013. The goal at that time was for the children to

return home to their mother.

       Almost a year before the children were removed from their mother, on July 24, 2012,

DSS opened an “Ongoing Service” file for appellant because of a complaint that she was using

alcohol and marijuana in the house when her children were present. DSS provided services at

that time, and referred appellant to Narcotics Anonymous.

       After the children were taken into DSS custody in 2013, appellant received additional

services. She continued to participate in a “Parents as Teachers” parenting program, which she

began on May 28, 2013. The program provided parenting education, information about

community resources, and some personal home visits. At trial, a supervisor from the program

testified that appellant completed sixteen of approximately thirty-five scheduled visits.

Appellant was also provided with a case manager, who assisted her in setting up specific goals,
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such as housing and employment. That relationship ended in July of 2014, and the parent

education services were terminated in October of 2014, when appellant indicated that she no

longer wanted the services. She did not meet the housing and employment goals.

       On July 2, 2013, the Virginia Independent Clinical Assessment Program assessed

appellant and found that she was eligible for mental health support services. As a result, she

underwent a psychological and parenting evaluation in September and October of 2013. The

clinical psychologist who conducted the evaluation found that appellant was “very depressed,

confused and emotional.” According to the evaluation, appellant’s “loneliness and depression”

made her at “high risk for child abuse and neglect.” The evaluation concluded that appellant

“reported a high level of stress related to parenting. She perceives herself to be weak, sick,

socially isolated and physically incapable of parenting her children.” Further, appellant was “at

risk for further neglect or maltreatment of her children.” The psychologist opined that appellant

was “unable to adequately care for her own basic needs, let alone the needs of her two children.”

       As a result of the assessment, appellant was referred for psychotherapy, counseling, and a

parenting class. The foster care service plans required that in addition to the mental health

treatment, appellant would maintain employment, obtain “safe and consistent” housing,

cooperate with the service professionals at DSS, and continue supervised visitation with her

children.

       Although appellant attended the ten psychotherapy sessions set up for her, when told she

needed further psychiatric evaluation, she contended that she did not need it. She took

medication for a period of time but discontinued it. She initially stopped because she could not

afford it, but later, when it was provided for her, she did not pick up the medication.

       When DSS first took custody of the children in 2013, appellant consistently visited them

on a weekly basis. Toward the end of 2014, that changed. At the same time, appellant declined

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to participate in a dual diagnosis support group, declined case management services to assist her

in applying for social security income and finding a stable residence, and declined therapy.

Appellant’s visitation with her children became more sporadic. In mid-October of 2014,

appellant told her case manager that she no longer wanted to work toward reunification with her

children. She directed the manager not to call her anymore and not to give her phone number to

any providers. She did, however, continue to visit with the children.

         In December of 2014, DSS changed the goal from “return home” to “adoption.” On

December 29, 2014, DSS filed petitions in the Portsmouth Juvenile and Domestic Relations

District Court (“JDR court”), requesting that permanency planning hearings be conducted. The

following day, DSS filed additional petitions requesting that appellant’s parental rights with

respect to K.M. and H.M. be terminated. On February 2, 2015, the JDR court held a hearing on

the petitions and entered orders terminating appellant’s parental rights and accepting the foster

care plans with a changed goal of “adoption” for each child. Appellant attempted to arrange for

visitation with the children following the entry of this order, but was unsuccessful because the

goal had changed to adoption. Appellant appealed the orders of the JDR court to the circuit

court.

         The matter was heard in circuit court on April 15, 2015. At that time, K.M. was five

years old and H.M. was three years old. The children had been in foster care for twenty-one

months. Testimony was adduced establishing that K.M. had been diagnosed with ADHD and

Oppositional Defiant Behavior. At the time of trial, appellant was living in an apartment with

two other roommates, but her name was not on the lease. She was on a waiting list for

low-income housing in Chesapeake, Virginia, and hoped to move there in four to eight months.

She had held five jobs from the time the children were taken into custody, and at the time of trial

was working twenty to twenty-four hours a week as a cook, being paid nine dollars an hour.

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Appellant testified that she was expecting another child in September, and was not residing with

the child’s father because they would become involved in altercations that occasionally required

police intervention. She also acknowledged failing to cooperate with some of the reunification

services offered by DSS.

       At the conclusion of the hearing, the court entered an order terminating appellant’s

parental rights to the children and accepting the foster care plans with the goal of adoption. This

appeal followed.

                                          II. ANALYSIS

                                      A. Standard of Review

       “In matters of 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.” Logan v. Fairfax Cty.

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, 328, 387 S.E.2d 794, 795 (1990)). “When addressing matters

concerning a child, including the termination of a parent’s residual parental rights, the paramount

consideration of a trial court is the child’s best interests.” Id. The circuit court’s judgment will

not be disturbed on appeal unless plainly wrong or without evidence to support it. Id.

       Judicial review of foster care plan recommendations is governed by a preponderance of

the evidence standard. Najera v. Chesapeake Div. of Soc. Servs., 48 Va. App. 237, 240, 629

S.E.2d 721, 722 (2006). However, Code § 16.1-283(B) and (C) require that the requisites for

termination of parental rights be proved by clear and convincing evidence. Clear and convincing

evidence is “more than a mere preponderance, but not to the extent of such certainty as is

required beyond a reasonable doubt as in criminal cases. It does not mean clear and

unequivocal.” Edwards v. Cty. of Arlington, 5 Va. App. 294, 306-07, 361 S.E.2d 644, 650




                                                -5-
(1987) (quoting Martin v. Pittsylvania Cty. Dep’t of Soc. Servs., 3 Va. App. 15, 21, 348 S.E.2d

13, 16 (1986)).

       Therefore, we review the trial court’s decision in applying the different standards to

determine whether DSS met its burden of proof to establish both the approval of the foster care

plans and the termination of appellant’s residual parental rights.

                          B. Assignment of Error 1: Code § 16.1-283(B)

       Appellant contends that the trial court erred in terminating her parental rights to her

children under Code § 16.1-283(B) because “[t]he evidence failed to prove that the neglect or

abuse suffered by the children ‘presents a serious and substantial threat’ to their life, health or

development.” She also argues that DSS “failed to prove that it is not reasonably likely that the

conditions which resulted in the neglect or abuse, even if such existed, can be substantially

corrected or eliminated within a reasonable period of time.” For the following reasons, we

disagree and affirm the ruling of the trial court.1

       Code § 16.1-283(B) provides, in pertinent part,

               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 the court finds,
               based upon clear and convincing evidence, 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 . . . within a
               reasonable period of time.

       1
          Because we affirm the trial court’s decision as it relates to appellant’s first assignment
of error, we need not address appellant’s second assignment of error. Indeed, appellant’s counsel
conceded at oral argument before this Court that if this Court affirms the trial court’s decision
with respect to Code § 16.1-283(B), then it need not address any argument with respect to Code
§ 16.1-283(C). Oral Argument Audio at 01:52-02:03 (“[T]he Court may very well say, well we
affirm under (B), therefore we’re not going to address (C).”).
                                                -6-
The evidence presented at trial supports the court’s conclusion that appellant neglected her

children to a degree that substantially threatened their “[lives], health or development.” After

being involved in a DSS service plan because of alcohol and marijuana use while she was the

sole custodial parent of a one and three year old, appellant attempted suicide in their presence.

As a result, she and her children were evicted from the homeless shelter where they were staying.

In addition to her drug use, appellant had been unable to maintain consistent employment and

provide a stable residence for herself and K.M. and H.M. Finally, appellant struggled with her

own serious mental health issues, and was unable to properly care for K.M., who was diagnosed

with ADHD and Oppositional Defiant Behavior.

       The record also did not support appellant’s contention that the conditions that resulted in

the children’s removal could be “substantially corrected or eliminated” within a “reasonable

period of time.” In fact, the converse was established. Code § 16.1-283(B)(2) lists factors that

may be considered prima facie evidence that the conditions are unlikely to be remedied,

including a parent’s inability or unwillingness to follow through with recommended and

available treatment for narcotics addiction or for mental health services. In the present case, the

record is replete with evidence that appellant did not follow through with appropriate

rehabilitative efforts offered by DSS.

       Even before the children’s removal, on July 24, 2012, DSS implemented on-going

services for appellant to address her drug use. However, appellant tested positive for marijuana

as late as September of 2014. Her psychological difficulties were also significant. As a clinical

psychologist noted, her “level of stress is severe, and her untreated depression and post-traumatic

stress puts her at a high risk for a second suicidal attempt or additional self-destructive

behavior.”




                                                 -7-
       Appellant, who was completely without family support, had discontinued therapy and

medication by the fall of 2014. Notably, she told her case manager that she no longer wanted to

work toward reunification with her children, and she directed the case manager not to give her

phone number to any service providers. “The law does not require the division to force its

services upon an unwilling or disinterested parent.” Barkey v. Commonwealth, 2 Va. App. 662,

670, 347 S.E.2d 188, 192 (1986).

       Although appellant testified that she desired to be reunified with her children, “past

actions . . . serve as good indicators of what the future may be expected to hold.” Linkous v.

Kingery, 10 Va. App. 45, 56, 390 S.E.2d 188, 194 (1990) (quoting Frye v. Spotte, 4 Va. App.

530, 536, 359 S.E.2d 315, 319 (1987)). By the time of the circuit court trial, K.M. and H.M. had

been in foster care for twenty-one months, over half of H.M.’s life and nearly a third of K.M.’s

life. Appellant was still not established in stable housing and had recently become employed on

a part-time basis. She was working at her fifth job since the children had been taken into DSS

custody. She was expecting another child and had failed to follow through with the rehabilitative

efforts of several agencies.

       Considering all of the facts, it was not error for the court to conclude that not only were

the children subjected to neglect which constituted a “serious and substantial threat” to their

lives, but it was “not reasonably likely that the conditions could be substantially corrected or

eliminated within a reasonable amount of time.” Therefore, the court properly concluded that it

was in the children’s best interest that appellant’s parental rights be terminated and the foster

care plans with a goal of adoption be accepted.

                                        III. CONCLUSION

       For the foregoing reasons, the decision of the trial court is affirmed.

                                                                                           Affirmed.

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