                               COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Alston and Senior Judge Coleman


JANICE KENT
                                                                      MEMORANDUM OPINION *
v.     Record No. 1104-11-1                                                PER CURIAM
                                                                         JANUARY 17, 2012
VIRGINIA BEACH DEPARTMENT
 OF HUMAN SERVICES


               FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                                Stephen C. Mahan, Judge

                 (Richard E. Garriott, Jr.; Patrick L. Maurer; Clarke, Dolph, Rapaport,
                 Hull, Brunick & Garriott, P.L.C., on brief), for appellant.

                 (Mark D. Stiles; Christopher Boynton; Rachel Allen; Peter
                 Imbrogno, Guardian ad litem for the minor children; Office of the
                 City Attorney; Peter Imbrogno & Associates, P.C., on brief), for
                 appellee.


       On May 26, 2011, the trial court terminated the residual parental rights of Janice Kent

(appellant) to her children, R.K. and A.K., pursuant to Code § 16.1-283(C)(2). On appeal of this

decision, appellant challenges the sufficiency of the evidence to support the terminations. Upon

reviewing the record and briefs of the parties, we conclude this appeal is without merit.

Accordingly, we summarily affirm the decision of the trial court. See Rule 5A:27.

       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)). When reviewing a decision to terminate parental rights, we presume the

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
circuit court “‘thoroughly weighed all the evidence, considered the statutory requirements, and

made its determination based on the child’s best interests.’” Id. at 265-66, 616 S.E.2d at 769

(quoting Fields v. Dinwiddie County Dep’t of Soc. Servs., 46 Va. App. 1, 7, 614 S.E.2d 656, 659

(2005)). “The trial court’s judgment, ‘when based on evidence heard ore tenus, will not be

disturbed on appeal unless plainly wrong or without evidence to support it.’” Id. at 266, 616

S.E.2d at 769 (quoting Logan, 13 Va. App. at 128, 409 S.E.2d at 463 (citation omitted)). “In its

capacity as factfinder, therefore, the circuit court retains ‘broad discretion in making the

decisions necessary to guard and to foster a child’s best interests.’” Id. (quoting Farley v. Farley,

9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)).

       Appellant and her husband, Richard Kent (Kent), are the biological parents of R.K. and

A.K., who were born on April 27, 2005, and September 7, 2003, respectively. 1 The two children

first came to the attention of Virginia Beach Department of Human Services (VBDHS) during an

investigation involving M.D., appellant’s daughter. At a hearing on March 31, 2008, on the

motion of VBDHS to obtain preliminary protective orders for the children, the court ordered

appellant and Kent to be tested for drugs and alcohol. 2 Appellant tested positively for alcohol

with a preliminary breath test result of .125% blood alcohol content. Kent tested positively for

marijuana. Consequently, A.K. and R.K. were removed from appellant’s home and taken into




       1
         Kent’s parental rights were terminated by the Virginia Beach Juvenile and Domestic
Relations District Court (juvenile court). He appealed the decision, but later withdrew his
appeal.
       2
         VBDHS had received complaints regarding appellant dropping the children off at
daycare while intoxicated, physical abuse of M.D. by appellant, and Kent driving while
intoxicated to transport A.K. to a hospital emergency room. The protective orders were sought
because appellant and Kent refused to comply with their prior agreement to submit to substance
abuse evaluations and drug screenings no later than March 7, 2008.

                                                -2-
temporary custody by VBDHS on March 31, 2008. 3 Custody of the children was transferred to

VBDHA on May 6, 2008, upon a finding of abuse or neglect.

       Brenda Herron was the foster care social worker for A.K. and R.K. beginning on August

26, 2008. The foster care service plan, with the goal of reunification of the children with

appellant and Kent, required appellant to complete a substance abuse evaluation, receive

continuing education regarding alcohol, and abstain from alcohol use. Appellant also was to

participate in individual therapy and counseling with Kent, to maintain a clean and healthy

environment for her children, and to maintain contact with VBDHS.

       Dr. Brian Wald, a licensed clinical psychologist, conducted psychological evaluations of

appellant and Kent between July and December 2008. It was revealed that Kent held a graphic

conversation about sexual matters with M.D. when she was six years old. During the incident,

Kent pointed out the labia majora and labia minor on appellant, who at the time was passed out

from drinking alcohol. When Dr. Wald questioned appellant about the matter, she initially said

she was “disgusted” by Kent’s actions. However, she later said she did not understand “what the

big deal was” about the incident. Dr. Wald concluded that appellant’s denial of the significance

of the event raised serious concerns about her ability to protect her children. In addition,

appellant and Kent had had numerous physical altercations with each other in front of the

children. Dr. Wald recommended couples therapy for appellant and Kent, as well as ongoing

treatment related to alcohol abuse and their inability to take responsibility for their poor

parenting decisions. Dr. Wald stated that appellant should abstain from alcohol completely and

obtain treatment for her inability to accept fault in parenting.




       3
         When she entered the custody of VBDHS, A.K. had a staph infection and an ear
infection. Both A.K. and R.K. had a history of repeated staph infections.

                                                 -3-
       Cynthia Skeete began counseling appellant in February 2009 through VBDHS’s referral

to Catholic Charities. During the course of counseling, appellant missed appointments and made

minimal progress toward the goal of putting boundaries in place to help her protect her children.

The sessions ended in August 2009 when appellant requested a different counselor. In

December 2009, the agency’s Family Assessment and Planning Team refused to provide

additional funding for appellant’s counseling because her previous participation was not

acceptable.

       Herron testified that throughout her dealings with appellant, appellant maintained that she

did not need counseling. During an early interview appellant indicated that she had been

subjected to domestic violence by Kent and that she had inflicted domestic violence herself.

Subsequently, however, appellant said that she and Kent had worked through their differences

and did not require couples therapy.

       Appellant was inconsistent with her participation in the alcohol treatment program,

although she and Kent did complete a substance abuse program through New Bridges. Appellant

reported that she attended Alcoholics Anonymous meetings. Nonetheless, when appellant and

Kent appeared in court on November 21, 2009, they smelled of alcohol. During a visit to

appellant’s home, Herron observed discarded beer and wine bottles outside the residence.

       Diane Frantz was the CASA worker involved with appellant’s family beginning in April

2008. Some of Frantz’s contacts with appellant and Kent were confrontational. During an

unannounced visit to the home appellant and Kent were renting on April 22, 2009, appellant told

Frantz to “fucking leave” because appellant was in the middle of cooking dinner and she needed

to use the bathroom. Appellant tried to close the garage door on Frantz and her supervisor.

Frantz and her supervisor noticed a strong odor of alcohol about appellant and Kent, and Frantz

voiced this observation. Appellant said the only thing Franz smelled was the chicken she was

                                               -4-
cooking. During another meeting Frantz had with appellant and Kent, appellant mentioned that

she thought some of the services being required of her were a waste of time because she and

Kent were good parents.

       A.K. reported to Dr. Portia Rawles, a clinical psychologist, that her parents had “done

nasty things to her,” and elaborated that appellant and Kent had touched her vaginal area and her

breasts. Rawles recommended a stable and structured environment for A.K., as well as ongoing

individual therapy.

       Christie White, a licensed clinical social worker, began counseling A.K. regularly in

December 2008 because the child was exhibiting behavioral and emotional problems in her

foster home and at school. A.K. was diagnosed with depressive disorder and Attention Deficit

Hyperactivity Disorder. A.K. exhibited inappropriate sexual behaviors when she was five years

old.

       The juvenile court terminated appellant’s and Kent’s parental rights to A.K. and R.K. on

February 26, 2010. Upon appeal of the decisions, an evidentiary hearing was held in the trial

court on June 15, 2010. The matter was continued until a second evidentiary hearing was held

on May 26, 2011.

       During the continuance of the matter in the trial court, appellant was incarcerated in

Pennsylvania from December 2010 until extradition to Virginia in January 2011. She remained

incarcerated at the time of her conviction, on May 11, 2011, of felonious destruction of property,

breaking and entering, and attempted grand larceny. At the time of the May 26, 2011

termination hearing, appellant had been released from jail and was living in a room she had

rented in a private residence. She was unemployed and had no plans to divorce Kent, who

remained incarcerated. Her sentencing hearing for the May 2011 convictions was scheduled for

July 29, 2011.

                                               -5-
        At the time of the 2011 termination hearing, A.K. had made a great deal of progress

through therapy and her stable home environment, which she did not wish to leave. Both R.K.

and A.K. had bonded with their foster parents, with whom they had lived together since

September 2008. A.K. gave no indication she remained bonded with appellant. A.K. and R.K.

were performing well in school and socially, were healthy, and were happy.

        At the May 26, 2011 hearing, appellant testified that she and Kent lived in a hotel for

most of 2010 because financial hardship had caused them to lose their home. Appellant testified

that she had been dissatisfied with the counseling services Skeete provided, so she obtained a

different counselor, Rita Patterson. Appellant said she met with Patterson for about six weeks,

but the counseling was discontinued due to Patterson’s medical issues. Appellant stated she was

not able to obtain free or reduced cost counseling services, as Herron had suggested. Appellant

admitted that she was an alcoholic, and said she had not consumed alcohol since sometime in

2010. Appellant denied that the children had witnessed physical fights between her and Kent.

Appellant said she was convicted of the three felonies in May 2011 because she was with Kent at

the “wrong place at the wrong time.” Appellant also was convicted in July of 2010 on a charge

of unlawfully possessing an open container of alcohol.

        Appellant argues the evidence was insufficient to support the termination of her parental

rights. Pursuant to Code § 16.1-283(C)(2), a parent’s residual parental rights “of a child placed

in foster care . . . 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

                [t]he parent . . . , without good cause, ha[s] 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. . . .

                                                   -6-
       A.K. and R.K. were removed from appellant’s home on March 31, 2008, when they were

four and one-half and almost three years old, respectively. The removal was necessitated by

appellant’s failure to refrain from abusing alcohol, which led to a finding of abuse or neglect of

the children. As of the termination hearing on May 26, 2011, the children had been in foster care

for more than three years. During that period of time, appellant had failed to comply with the

requirements of the foster care service plan regarding ongoing substance abuse treatment and

individual counseling, despite the agency’s efforts to assist her. Appellant had proven

uncooperative with the efforts of VBDHS, claimed required treatment was unnecessary and a

waste of her time, and had continued to use alcohol despite being ordered to refrain. VBDHS

was not required to “force its services upon an unwilling or disinterested parent.” Harris v.

Lynchburg Div. Soc. Serv., 223 Va. 235, 243, 288 S.E.2d 410, 415 (1982).

       In determining what is in the best interests of a child, this Court has stated:

               a court must evaluate and consider many factors, including the age
               and physical and mental condition of the child or children; the age
               and physical and mental condition of the parents; the relationship
               existing between each parent and each child; the needs of the child
               or children; the role which each parent has played, and will play in
               the future, in the upbringing and care of the child or children; and
               such other factors as are necessary in determining the best interests
               of the child or children.

Barkey v. Commonwealth, 2 Va. App. 662, 668, 347 S.E.2d 188, 191 (1986).

       Clear and convincing evidence proved that termination of appellant’s parental rights was

in the best interests of both A.K. and R.K. As of the date of the trial court’s decision, A.K. and

R.K. had been in foster care for more than three years. Despite A.K.’s initial difficulties with

behavior, A.K. and R.K. were happy and thriving in their foster home, and had bonded with the

foster parents. Appellant, who had recently been released from jail, was unemployed and

unequipped to provide a suitable home for the children. Moreover, appellant had indicated

unwillingness to separate from her husband, whose parental rights had been terminated.
                                                -7-
       We recognize that “‘[t]he termination of [residual] parental rights is a grave, drastic and

irreversible action.’” Helen W. v. Fairfax County Dep’t of Human Dev., 12 Va. App. 877, 883,

407 S.E.2d 25, 28-29 (1991) (quoting Lowe v. Dep’t of Public Welfare of Richmond, 231 Va.

277, 280, 343 S.E.2d 70, 72 (1986)). However, “[i]t is clearly not in the best interests of a child

to spend a lengthy period of time waiting to find out when, or even if, a parent will be capable of

resuming his [or her] responsibilities.” Kaywood v. Halifax County Dep’t of Soc. Servs., 10

Va. App. 535, 540, 394 S.E.2d 492, 495 (1990).

       We find the evidence sufficient to support the trial court’s decision to terminate

appellant’s parental rights to A.K. and R.K. pursuant to Code § 16.1-283(C)(2). Therefore, we

summarily affirm the trial court’s decision.

                                                                                            Affirmed.




                                                -8-
