                                              COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Felton, Judges Kelsey and Petty
UNPUBLISHED


              Argued at Richmond, Virginia


              CANDICE SULLIVAN
                                                                                  MEMORANDUM OPINION BY
              v.     Record No. 0809-13-2                                          JUDGE WILLIAM G. PETTY
                                                                                        APRIL 1, 2014
              FREDERICKSBURG DEPARTMENT
               OF SOCIAL SERVICES


                            FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
                                       William H. Ledbetter, Jr., Judge Designate

                               Teresa L. Pagliaro (The Pagliaro Law Firm, on briefs), for appellant.

                               (Stuart C. Sullivan, III; Stuart C. Sullivan & Carolyn S. Seklii,
                               Attorneys at Law, P.L.C., on brief), for appellee. Appellee
                               submitting on brief.

                               Robin N. Krueger (Strentz & Greene, LLC), Guardian ad litem for
                               the infant children.1


                     Candice Sullivan appeals from an order of the circuit court terminating her parental rights

              to W. and C.2 On appeal, Sullivan argues that the circuit court erred in terminating her parental

              rights because (1) the Fredericksburg Department of Social Services (DSS) failed to demonstrate

              by clear and convincing evidence that Sullivan, without good cause, had been unwilling or

              unable to remedy substantially the conditions that led to, or required the continuation of, the

              children’s placement in foster care, and (2) DSS failed to prove by clear and convincing evidence


                     
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                      On appeal, DSS waived oral argument. However, the children’s guardian ad litem
              appeared and argued on behalf of the children, espousing DSS’s on-brief arguments.
                     2
                         We will refer to the children by their first initial.
that termination of Sullivan’s parental rights was in the children’s best interests. For the reasons

stated below, we affirm the ruling of the circuit court.

                                                  I.

       Because the parties are fully conversant with the record in this case and this

memorandum opinion carries no precedential value, we recite below only those facts and

incidents of the proceedings as are necessary to the parties’ understanding of the disposition of

this appeal. On appeal, we view the evidence in the light most favorable to the party prevailing

below and grant to it all reasonable inferences fairly deducible therefrom. Logan v. Fairfax

Cnty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991).

                                                 II.

       Sullivan argues that the circuit court erred in terminating her parental rights.

Specifically, Sullivan argues that the circuit court erred because she was willing and able to

remedy substantially the conditions which led to the children being placed and remaining in

foster care. Sullivan also argues that the termination of her parental rights was not in the

children’s best interests. We disagree.

       The standard of review for a case involving the termination of parental rights is well

settled: “We presume the circuit court thoroughly weighed all the evidence, considered the

statutory requirements, and made its determination based on the child’s best interests.” Toms v.

Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 266, 616 S.E.2d 765, 769 (2005). Moreover,

“[w]here, as here, the court hears the evidence ore tenus, its finding is entitled to great weight

and will not be disturbed on appeal unless plainly wrong or without evidence to support it.”

Martin v. Pittslyvania Cnty. Dep’t of Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986)

(citations omitted).




                                                -2-
                                           A. Background

          In April 2011, Sullivan lived with her two children, W. and C. and her boyfriend, Patrick

Dawson. W. was three years old, and C. was one year old. On April 16, 2011, Sullivan brought

W. to the hospital with a spiral fracture in his femur. Sullivan stated that W. broke his leg by

falling off a couch. It was later determined that Dawson fractured W.’s femur. Dawson was

convicted of felony child neglect, and Sullivan was convicted of contributing to the abuse or

neglect of her child.

          DSS subsequently removed W. and C. from Sullivan’s care. The Fredericksburg JDR

court found that W. was abused and neglected and C. was at risk of being abused. Therefore, the

children were placed in foster care.

          While in foster care, W. displayed inappropriate sexual behavior. In June 2011, W.

underwent an interdisciplinary prescriptive health and developmental evaluation. W. was

diagnosed as a victim of physical abuse and sexual abuse. The report concluded that “[r]eturn to

family of origin should proceed carefully and cautiously.” W. showed progress in therapy,

which his therapist attributed to “the stable relationship and attachment that [W. had] with his

foster parent.”

          Sullivan was allowed visitation with her children; however, she was ordered not to have

any contact with Dawson. Sullivan arrived for her visitations and had clean drug screenings.

But, in May 2011, DSS suspended Sullivan’s visitations because it learned that Sullivan had

been in contact with Dawson. Sullivan’s visits were allowed to resume in July 2011 but were

suspended shortly thereafter because W. had “uncontrollable and dangerous behavior” after their

visits.

          Moreover, DSS offered numerous services to Sullivan after the children entered foster

care. Sullivan completed parenting classes and participated in all of the permanency planning

                                                 -3-
meetings. Sullivan also participated in a psychological assessment, which concluded that she

had borderline intellectual functioning and her ability to process and retain information was

“poor.” Sullivan’s coping skills were also found to be limited, which placed her at a “significant

disadvantage when facing a difficult situation or problem.”

       DSS referred Sullivan to mental health support services and individual counseling. In

February 2012, Sullivan reported to DSS that she started outpatient therapy, but she did not seek

mental health support services.

       Because of Dawson’s incarceration, Sullivan was not able to afford the apartment where

she lived with her children and Dawson. Sullivan lived with friends and stayed in motels, while

working at a fast-food restaurant. Sullivan was finally able to obtain housing in March 2012,

eleven months after the children entered foster care. A home study was conducted by DSS in

April 2012. The social worker who conducted the study concluded that Sullivan was living

within her financial means, but it would be a “struggle for [Sullivan] to adequately care for the

children on her income.” Without additional financial support, the social worker did not support

the return of the children to Sullivan’s care. Furthermore, there was evidence that Sullivan had

difficulty with basic independent living skills, such as filling out applications, budgeting, and

finding resources.

       On May 14, 2012, a therapeutic visitation assessment was completed. During the

interview, Sullivan continued to state that W. broke his leg by falling off a couch. Sullivan

“exhibited a limited understanding of the causal relationship between her actions and/or inactions

to date and the resulting implications for reunification.” The therapist concluded that “visitation

[should] proceed cautiously and in alignment with a plan that is flexible and responsive to the

differing needs of each child.” The therapist testified that “a best case scenario” would be that




                                                -4-
the entire process of reunification would take four to six months. Even then, the therapist “had a

very guarded prognosis about the success of this case.”

       After receiving the home study and therapeutic visitation assessment, DSS decided to

seek termination of Sullivan’s parental rights. The termination of parental rights petitions were

filed on May 21, 2012. On October 4, 2012, the JDR court terminated Sullivan’s parental rights.

Sullivan appealed to the circuit court. The circuit court concluded it was in the children’s best

interests to terminate Sullivan’s parental rights. This appeal followed.

              B. Termination of Parental Rights Pursuant to Code § 16.1-283(C)(2)

       Sullivan’s parental rights were terminated pursuant to Code § 16.1-283(C)(2), which

states that a court may terminate parental rights if there is clear and convincing evidence that

termination is in the best interests of the children and

               [t]he parent or parents, without good cause, have been unwilling or
               unable within a reasonable period of time not to exceed 12 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 [or she] has
               been offered rehabilitation services.

Toms, 46 Va. App. at 271, 616 S.E.2d at 772 (citation omitted). “‘Reasonable and appropriate’

efforts can only be judged with reference to the circumstances of a particular case. Thus, a court

must determine what constitutes reasonable and appropriate efforts given the facts before the




                                                 -5-
court.” Ferguson v. Stafford Cnty. Dep’t of Soc. Servs., 14 Va. App. 333, 338, 417 S.E.2d 1, 4

(1992).

          Sullivan argues that the circuit court erred in terminating her parental rights because she

was willing and able to remedy substantially the conditions which led to the children being

placed and remaining in foster care. Sullivan asserts that she acquiesced to every reasonable

request from DSS and that DSS did not offer her some services until the children had been in

foster care for almost one year. Notably, Sullivan points out that the home study was not

completed until April 2012, and the therapeutic visitation assessment was not completed until

May 2012. Thus, Sullivan contends that DSS caused the delays in providing her with necessary

services, which caused her non-compliance with the statutory twelve-month limitation.

          Sullivan relies on C.S. v. Virginia Beach Department of Social Services, 41 Va. App.

557, 586 S.E.2d 884 (2003), to support her argument. In C.S., the Court found that DSS did not

offer family therapy and could not require that the mother comply with a service that was not

provided. Id. at 569, 586 S.E.2d at 890. Accordingly, the Court held that the mother

substantially remedied, within twelve months, the conditions which led to her children being

placed in foster care. Id. at 570, 586 S.E.2d at 890.

          Here, unlike in C.S., DSS did not delay its services or deny certain services to Sullivan.

DSS could not consider returning the children to Sullivan’s care until it could see how Sullivan

was progressing with her housing situation. The children entered foster care in April 2011.

Sullivan did not obtain housing until March 2012. After Sullivan obtained housing, DSS ordered

the home study and therapeutic visitation assessment. At that time, the children had been in

foster care for approximately one year. Nevertheless, DSS was willing to extend the time frame

at the permanency planning hearing in order to see if the children could be reunited with

Sullivan. After receiving the home study and the therapeutic visitation assessment, it became

                                                  -6-
apparent to DSS that Sullivan would be unable to remedy her circumstances in a reasonable

period of time. The prognosis, which was “guarded,” showed that it would take at least four to

six more months to reunite the family, at which point the children would have been in foster care

for approximately a year and a half.

       “The twelve-month time limit established by Code § 16.1-283(C)(2) was designed to

prevent an indeterminate state of foster care ‘drift’ and to encourage timeliness by the courts and

social services in addressing the circumstances that resulted in the foster care placement.” L.G.

v. Amherst Cnty. Dep’t of Soc. Servs., 41 Va. App. 51, 56, 581 S.E.2d 886, 889 (2003). “It 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 responsibilities.” Kaywood v. Halifax

Cnty. Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990).

       At trial, DSS acknowledged that Sullivan had completed many of its requirements;

however, “it is[ not] a situation where you need to jump through the hoops and then you get your

children back or cross things off a list and then you get your children back.” Sullivan still had

limitations in her ability to parent and care for her children. Sullivan had not been able to

remedy her situation within the requisite time period. Therefore, based upon a review of the

circumstances in this case, DSS provided reasonable and appropriate services to Sullivan and

there was clear and convincing evidence that Sullivan was unwilling or unable to remedy the

problems during the period in which she was offered services. Accordingly, there was sufficient

evidence supporting the circuit court’s decision to terminate Sullivan’s parental rights under

Code § 16.1-283(C)(2).

                                 C. Best Interests of the Children

       Sullivan next argues that termination of her parental rights was not in the best interests of

the children. We disagree.

                                                -7-
       When considering termination of parental rights, “the paramount consideration of a trial

court is the child’s best interests.” Logan, 13 Va. App. at 128, 409 S.E.2d at 463. Moreover, as

mentioned above, “[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

responsibilities.” Kaywood, 10 Va. App. at 540, 394 S.E.2d at 495.

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

               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).

       Sullivan contends that she complied with all of DSS’s requests. Sullivan insists that DSS

erred in suspending her visitations in July 2011. DSS explains that the visitations were

suspended because W. began acting out after his visitations with Sullivan. For example, at

preschool, W. cursed at the teachers, threatened the teachers and students, and was violent.

Sullivan notes that the problem was with the preschool, not her visitations. Admittedly, W.’s

behavior improved after changing preschools; however, as the trial court noted, Sullivan never

sought visitation after it was suspended in July 2011.

       Sullivan participated in a therapeutic visitation assessment in late April 2012. At the time

of the assessment, Sullivan showed “no empathy . . . for her son or his experiences.” Sullivan

still insisted that W. fell off a couch and fractured his leg, despite medical evidence to the

contrary. Sullivan refused to acknowledge negative behavior that W. had after visiting her in

July. Sullivan merely said that W. was not listening well. Throughout the entire interview,

Sullivan “maintained a flat effect.”
                                                -8-
       Meanwhile, the evidence proved that the children were doing well in foster care. W.

went to a counselor who helped him deal with his temper and boundary issues. W.’s behavior

significantly improved over time.

       The circuit court concluded it was in the children’s best interests to terminate Sullivan’s

parental rights. The record supports the court’s determination.

                                                III.

       For the foregoing reasons, we affirm the circuit court’s decision.

                                                                                         Affirmed.




                                               -9-
