                                             COURT OF APPEALS OF VIRGINIA
UNPUBLISHED


              Present: Chief Judge Huff, Judges Decker and AtLee
              Argued at Chesapeake, Virginia

              JESSICA GAY
                                                                             MEMORANDUM OPINION* BY
              v.     Record No. 0887-17-1                                     CHIEF JUDGE GLEN A. HUFF
                                                                                  OCTOBER 10, 2017
              VIRGINIA BEACH DEPARTMENT
               OF HUMAN SERVICES


                             FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                                            A. Bonwill Shockley, Judge

                               Mykell Messman (Messman Law, PLC, on brief), for appellant.

                               Elena E. Ilardi, Associate City Attorney (Mark D. Stiles, City
                               Attorney; Christopher S. Boynton, Deputy City Attorney; Leilani
                               Adams, Guardian ad litem for the infant children; Thomas &
                               Associates, on brief), for appellee.

                     Jessica Gay (“appellant”) appeals the order of the Circuit Court of the City of Virginia

              Beach (“circuit court”) terminating her residual parental rights, pursuant to Code § 16.1-283(C),

              with regards to two of her children, R.G.-B. (born December 13, 2004) and R.D. (born

              November 5, 2006).1 On appeal, appellant contends that the evidence was insufficient to prove

              the statutory factors for termination and that the circuit court considered inadmissible evidence.

              For the following reasons, this Court affirms the circuit court’s order of termination.

                                                       I. BACKGROUND

                     “When reviewing a trial court’s decision on appeal, we view the evidence in the light

              most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”

              Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003) (citing Wright v.


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                         Appellant also has a third child, N.G.-B., who is not a subject of this appeal.
Wright, 38 Va. App. 394, 398, 564 S.E.2d 702, 704 (2002)). So viewed, the evidence is as

follows. 2

        The Virginia Beach Department of Human Services (“DHS”) assumed custody of the

children in October 2013 when a relative who was caring for them fell ill while appellant was in

jail. DHS developed an initial foster care plan during appellant’s incarceration with a goal of

eventually returning the children to her care. The plan required appellant to take a parenting

class, complete a parenting capacity evaluation with treatment recommendations, find stable

housing and employment, develop a community support system, attend visitations, and cooperate

with DHS.

        Following her release on January 4, 2014, appellant moved to New York to live with her

fiancé. While there, appellant completed the parenting class, but she only attended nine of

seventeen scheduled visitations and tested positive for marijuana. Appellant then returned to

Virginia Beach, where she obtained seasonal employment as a housekeeper and attended

visitations sporadically. During a series of permanency planning hearings in the Virginia Beach

Juvenile and Domestic Relations District Court (“JDR court”) which began in October 2014,

DHS required appellant to submit to drug testing, complete a parental capacity evaluation, and

participate in therapy based on the results of that evaluation. Although she completed the

parental capacity evaluation, by September 2015 appellant had not secured stable housing and

failed a second drug test. In addition, appellant’s foster care worker advised her that the children

experienced behavioral problems while in foster care attributable, at least in part, to appellant’s

“inconsistent visitation with them.”




        2
         As the parties are fully conversant with the record in this case, and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the appeal.
                                                -2-
       Recognizing that the children had been in foster care for nearly two years at this point,

the JDR court included a special notation in its September 30, 2015 permanency planning order

articulating precisely what it expected of appellant to fulfill the plan:

               The Court is requiring [appellant] to get into regular individual
               counseling a minimum of twice a [month], preferably weekly
               forthwith. Any transition into [appellant’s] care shall require a
               supervision plan for the child, a new hair follicle test on [appellant]
               that demonstrates no illegal drug use since this hearing; [appellant]
               shall have a phone or a way to be reached and [appellant] shall
               cooperate with a parenting coach and in home services which shall
               be paid by [the Family Assistance and Planning Team] in order for
               the Court to approve and order transferring custody to [appellant].

From the time of this hearing and into 2016, appellant did not comply with the JDR court’s

requirements. She attended only four therapy sessions during the six-month period following the

hearing. She secured an appropriate apartment with DHS financial assistance, but was evicted

after three months—a fact DHS only learned from a third party as appellant refused to provide

proof of rent payment. Appellant’s employer again laid her off in the fall of 2015 due to the

seasonal nature of her employment, and appellant did not secure winter employment. She

became less responsive during this period such that her parent coach had difficulty contacting her

for appointments and visitations. Further, she refused a court-ordered drug test.

       In light of appellant’s lack of cooperation, the JDR court amended the permanent goal to

relative placement/adoption rather than the previous goal of returning the children to appellant.

DHS identified two relatives as potential placements for the children, but neither completed the

requisite foster parent training. DHS again revised its permanency plan to reflect a goal of

adoption. During a hearing on September 7, 2016, which appellant did not attend, the JDR court

terminated appellant’s residual parental rights as to the children and entered a permanency

planning order approving the goal of adoption.




                                                 -3-
       A de novo trial before the circuit court took place on March 7, 2017. At that time,

appellant remained unemployed awaiting the beginning of her seasonal employment, was no

longer attending therapy, and was living with her mother—a habitation ineligible for placement

due to a prior child protective services finding against the mother.

       At trial, DHS called Arlene Agustin (“Agustin”), a former Virginia Beach child

protective services investigator, to testify regarding a 2007 investigation regarding the death of

appellant’s infant son. Agustin testified that appellant lived with her mother at that time in a

home that had “concerning” living conditions, including burned walls from a kitchen fire,

vermin, and exposed wiring. Appellant did not have a room or bed for her family; instead,

appellant slept on a couch holding then two-month-old R.D. in her arms, the infant son at her

feet, with two-year-old R.G.-B. and three-year-old N.G.-B. both sleeping on the floor beside the

couch. One night during this period, R.G.-B. ended up atop the infant son, resulting in the

infant’s death and prompting an investigation. Agustin testified that the incident and living

conditions resulted in a level one child protective services finding for physical neglect and

inadequate shelter against appellant. Appellant objected to the relevance of this testimony, but

the circuit court overruled the objection.

       DHS also called Lorelei Jones (“Jones”), a DHS case worker who testified regarding her

familiarity with appellant’s family, and particularly appellant’s mother. Jones noted that she had

concerns with appellant’s mother including her alcoholic tendencies. She likewise testified that

she had investigated other family members to determine whether they could be potential

placement options. As with Agustin, appellant objected to the relevance of Jones’ testimony and

the circuit court again overruled the objection.

       In uncontested testimony, Jones stated that R.D. still had emotional and behavioral issues

at the time of trial, but that R.G.-B. had improved over her time in foster care. R.G.-B. required

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less ADHD medication and had a deeper relationship with her foster family. Jones observed that

R.D. and R.G-B. do not get along well together, noting that they physically fought when she first

became involved in the case and continued to engage in frequent verbal altercations at the time

of trial. As a result, the children’s therapist recommended that it would be in their best interests

to be separated for their permanent placements.

       Ultimately, the circuit court ordered the termination of appellant’s residual parental rights

to R.G.-B. and R.D. pursuant to Code § 16.1-283(C)(2), and this appeal followed.

                                  II. STANDARD OF REVIEW

       This Court employs a familiar standard of review on appeal of a circuit court’s decision

to terminate parental rights:

               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. On
               review, “[a] trial court is presumed to have thoroughly weighed all
               the evidence, considered the statutory requirements, and made its
               determination based on the child’s best interests.”

Logan v. Fairfax County 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, 329, 387 S.E.2d 794, 796 (1990)). “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.” Id. (quoting Farley, 9 Va. App. at 328,

387 S.E.2d at 795). “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. (quoting

Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988)). “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.’” Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257,

266, 616 S.E.2d 765, 769 (2005) (quoting Farley, 9 Va. App. at 328, 387 S.E.2d at 795).



                                                -5-
        Similarly, “[t]he admissibility of evidence is within the broad discretion of the trial court,

and a ruling will not be disturbed on appeal in the absence of an abuse of discretion.” Logan, 13

Va. App. at 132, 409 S.E.2d at 465 (quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371

S.E.2d 838, 842 (1988)). “Likewise, a court’s determination and weighing of the probative value

of evidence ‘rests largely with the trial court and will be reviewed only for an abuse of

discretion.’” Id. (quoting Lewis v. Commonwealth, 8 Va. App. 574, 579, 383 S.E.2d 736, 740

(1989)).

                                          III. ANALYSIS

        Appellant’s assignments of error fall into two categories: assignments one, two, and

three allege that insufficient evidence supported the circuit court’s termination decision, while

assignment four contends the circuit court erred in admitting testimony by Agustin and Jones

regarding DHS’s 2007 investigation and dealings with appellant’s family members.

                                    A. Evidentiary Sufficiency

        Appellant’s first three assignments of error argue that the circuit court’s decision was

“contrary to the law and evidence,” that DHS did not meet “its burden of proving all statutory

factors,” and that termination was not “in the best interests of the children.” For the following

reasons, this Court disagrees with appellant and finds the evidence sufficient to support the

circuit court’s ruling.

        Code § 16.1-283(C) governs the termination of parental rights in this case:

                The residual parental rights of a parent . . . of a child 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:

                   ....

                2. The parent . . . , without good cause, [has] 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
                                                 -6-
                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.

(Emphasis added). Proof that the parent, without good cause, has not made “substantial progress

towards elimination of the conditions . . . in accordance with [that parent’s] obligations under

and within the time limits or goals set forth in a foster care plan” constitutes prima facie

evidence of failure to remedy the conditions. Id. The court must also consider “prior efforts of

[rehabilitative] agencies to rehabilitate the parent . . . prior to the placement of the child in foster

care.” Id. Thus, DHS was required to present clear and convincing evidence sufficient to satisfy

these elements.

        Under this Court’s precedent, “clear and convincing evidence” refers to

                [t]hat measure or degree of proof which will produce in the mind
                of the trier of facts a firm belief or conviction as to the allegations
                sought to be established. It is intermediate, being 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.

Cirrito v. Cirrito, 44 Va. App. 287, 303 n.8, 605 S.E.2d 268, 275 n.8 (2004).

        Unlike the requisite judicial finding of neglect or abuse required to terminate parental

rights under Code § 16.1-283(B), “[s]ubsection C termination cases . . . start off with no such

finding of parental culpability.” Toms, 46 Va. App. at 271, 616 S.E.2d at 772. Instead,

subsection C cases are “[c]onsiderably more ‘retrospective in nature’” and focus on “the

demonstrated failure of the parent to make reasonable changes” during the period in which he or

she has been offered rehabilitative services. Id. (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)). Code

§ 16.1-283(C)(2) sets forth two inquiries courts must undertake in termination cases: first, the

court must determine the child’s best interests, and second, it must examine the parent’s progress

                                                  -7-
in remedying the conditions that lead to foster care within a one-year period. See Richmond

Dep’t of Soc. Servs. v. Crawley, 47 Va. App. 572, 579, 625 S.E.2d 670, 673 (2006).

          Regarding the child’s best interests,

                 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, Alexandria Dep’t of Human Servs., 2 Va. App. 662, 668, 347 S.E.2d

188, 191 (1986).

          As to the second inquiry, “[a]bsent ‘good cause,’ a parent or parents receiving the

‘reasonable and appropriate’ services of ‘rehabilitative agencies’ must ‘remedy substantially’ the

‘conditions which led to . . . foster care’ of the child in a ‘reasonable period not to exceed twelve

months.’” Lecky v. Reed, 20 Va. App. 306, 312, 456 S.E.2d 538, 540 (1995) (quoting Code

§ 16.1-283(C)(2)). “The statute clearly contemplates that efforts to resolve the ‘conditions’

relevant to termination are constrained by time.” Id.

                 The phrase, “within a reasonable time” is an important element of
                 the statutory scheme. One of the goals of the Commonwealth, as
                 noted, is to maintain the family structure in all possible
                 circumstances. The Code recognizes, however, that there are
                 circumstances in which this will not be possible. 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 County Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495

(1990).

          Viewing the evidence in this case in the appropriate light, this Court holds that the circuit

court did not err in finding the evidence sufficient to terminate appellant’s parental rights. The

                                                  -8-
record reveals that the circuit court had ample evidence from which to conclude that appellant

had been unwilling or unable to remedy the conditions that required foster care placement within

a reasonable time and that placement with appellant was not in the children’s best interests.

Appellant’s lack of consistent stable employment and housing were primary factors in the

children’s initial placement in foster care. By the time of the circuit court trial over three years

later, appellant had only found seasonal employment, was unemployed at the time, and lacked

housing suitable for the children’s return. Further, appellant grew increasingly uncooperative as

time went on: she refused to take drug tests, ignored DHS attempts to reach her to provide

services, concealed that she had been evicted, and remained inconsistent in her visitation

attendance—a failure that contributed to the children’s behavioral problems. The statute seeks

improvement within twelve months, but throughout the years of foster care this case spans,

appellant demonstrated little ability to improve beyond her initial condition. DHS is not

obligated to “force its services upon an unwilling or disinterested parent.” Harris v. Lynchburg

Div. of Social Services, 223 Va. 235, 243, 288 S.E.2d 410, 415 (1982).

       Moreover, the circuit court also had ample evidence that termination was in the children’s

best interests. The record indicates that both children experienced improvement in their behavior

and stability during their time in foster care, but appellant’s inconsistent visitation impeded this

progress. Additionally, citing their contentious relationship with each other, the children’s

therapist recommended that they be placed separately—a result fundamentally inconsistent with

returning them to appellant. The evidence before the circuit court therefore supported its

conclusion that termination of appellant’s residual parental rights was appropriate. Accordingly,

this Court holds that the circuit court’s termination decision was not plainly wrong or without

evidence to support it.




                                                 -9-
                                 B. Admissibility of the Evidence

       Appellant’s fourth assignment of error contends that the circuit court abused its discretion

by “allowing evidence of a prior incident investigated by DHS,” referring to Agustin’s testimony

regarding the 2007 infant death investigation, and “allowing evidence of DHS dealings with

[appellant’s] extended family,” referring to Jones’s testimony regarding her experience with

appellant’s mother and other family members. Because both witnesses’ testimony was relevant

and probative, this Court finds that the circuit court did not abuse its discretion by admitting it.

       Appellant argues that the testimony at issue was irrelevant and highly prejudicial.

Although “[a]ll relevant evidence is admissible,” Va. R. Evid. 2:402, even relevant evidence is

subject to exclusion if “the probative value of the evidence is substantially outweighed by . . . the

danger of unfair prejudice,” Va. R. Evid. 2:403(a)(i). “When balancing these considerations, it is

of course true that ‘all probative direct evidence generally has a prejudicial effect to the opposing

party.’” Commonwealth v. Proffitt, 292 Va. 626, 635, 792 S.E.2d 3, 7 (2016) (quoting Lee v.

Spoden, 290 Va. 235, 251, 776 S.E.2d 798, 806 (2015)). The relevant question for this analysis

is therefore “whether the probative value of the evidence is substantially outweighed by its unfair

or unduly prejudicial effects.” Lee, 290 Va. at 252, 776 S.E.2d at 807.

       Agustin’s testimony was relevant to the circuit court’s inquiry into appellant’s present

ability to care for her children. This testimony indicates that appellant has a history of child care

issues, which was highly probative, particularly in light of appellant’s failure to remedy the

deficiencies causing the initial foster care placement over the period prior to trial. That the

events forming the basis of Agustin’s testimony occurred a decade ago is of no consequence.

“Virginia law recognizes the ‘maxim that, sometimes, the most reliable way to gauge a person’s

future actions is to examine those of [her] past.’ As many courts have observed, one permissible

‘measure of a parent’s future potential is undoubtedly revealed in the parent’s past behavior with

                                                - 10 -
the child.’” Toms, 46 Va. App. at 268, 616 S.E.2d at 770 (quoting Petry v. Petry, 41 Va. App.

782, 793, 589 S.E.2d 458, 463 (2003)).

       Jones’s testimony was likewise relevant and probative in light of DHS’s duty to consider

placements with relatives. See Code § 16.1-283(A) (requiring in termination cases that “the

court shall give a consideration to granting custody to relatives of the child, including

grandparents”). Jones’s prior experiences and opinions concerning appellant’s mother were also

relevant and probative to the circuit court’s decision, given that appellant resided with her

mother at the time of the circuit court trial and hoped the children could be placed with her there.

       Accordingly, this Court holds that the circuit court did not abuse its discretion in

admitting the testimony from Jones and Agustin.

                                        IV. CONCLUSION

       For the foregoing reasons, this Court affirms the circuit court’s decision to terminate

appellant’s residual parental rights.

                                                                                            Affirmed.




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