                               COURT OF APPEALS OF VIRGINIA


Present: Judges Kelsey, Petty and Senior Judge Bumgardner


SIMONE SCOTT

v.     Record No. 2214-11-3

ROANOKE CITY DEPARTMENT OF SOCIAL SERVICES


SIMONE SCOTT

v.     Record No. 2215-11-3

ROANOKE CITY DEPARTMENT OF SOCIAL SERVICES


SIMONE SCOTT
                                                                     MEMORANDUM OPINION *
v.     Record No. 2216-11-3                                              PER CURIAM
                                                                         APRIL 3, 2012
ROANOKE CITY DEPARTMENT OF SOCIAL SERVICES


SIMONE SCOTT

v.     Record No. 2217-11-3

ROANOKE CITY DEPARTMENT OF SOCIAL SERVICES


SIMONE SCOTT

v.     Record No. 2218-11-3

ROANOKE CITY DEPARTMENT OF SOCIAL SERVICES


SIMONE SCOTT

v.     Record No. 2219-11-3

ROANOKE CITY DEPARTMENT OF SOCIAL SERVICES



       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                  FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
                              Clifford R. Weckstein, Judge

               (Charles J. Covati, on briefs), for appellant. Appellant submitting
               on briefs.

               (Timothy R. Spencer, Acting City Attorney; Heather P. Ferguson,
               Assistant City Attorney; Rena G. Berry, Guardian ad litem for the
               minor children, on briefs), for appellee. Appellee and Guardian
               ad litem submitting on briefs.


       Simone Scott (mother) appeals the trial court’s orders terminating her parental rights to

six of her children.

       In Record Nos. 2214-11-3, 2215-11-3, 2217-11-3, 2218-11-3, and 2219-11-3, mother

contends the trial court erred in “finding that the evidence was sufficient to terminate the parental

rights of Scott and approve the Department’s permanency planning goal of adoption” for five of

her minor children: E.S-J., Q.S-J., A.S., M.S., and N.H.

       In Record No. 2216-11-3, mother contends the trial court erred in finding sufficient

evidence to terminate her parental rights to F.S. In addition, mother also alleges the trial court

erred in “attempt[ing] to explain the adoption process to [F.S.] in order to ascertain if he

consented to the termination of his mother’s parental rights.”

       For the reasons stated below, we affirm the decision of the trial court.

                                          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)).




                                                 -2-
       Roanoke City Department of Social Services (DSS or the Department) became involved

with mother in April 2009, after she gave birth, prematurely, to twins, S.S-J and T.S-J. One twin

was born at home, and the other was born later at the hospital “after prolonged oxygen

deprivation.” Mother claimed she was unaware she was having twins because she did not

receive any prenatal care. The twins had serious medical conditions that needed special

attention, but the parents declined the hospital’s requests to teach them how to medically care for

the underweight, premature twins. As a result, a Child Protective Services (CPS) complaint was

lodged and DSS provided services to the family. T.S-J. was hospitalized, and S.S-J. was

removed from the home on June 15, 2009. T.S-J. died on June 19, 2009. At mother’s August

10, 2011 hearing, the trial court admitted an order dated January 10, 2011 reflecting that

mother’s residual parental rights to S.S-J. were previously terminated in an unrelated proceeding.

       In early May 2009, CPS received a complaint regarding then thirteen-month old E.S-J.

who was visiting her pediatrician for the first time since she was born to get past due

immunizations. The doctor diagnosed E.S-J. with, among other things, “failure to thrive” and

suspected that she and several of her siblings may suffer from fetal alcohol syndrome. At the

time, mother had nine children, eight of whom lived with her. 1

       On July 13, 2009, CPS Investigator Julie Allie filed petitions for preliminary protective

orders to remove the remaining children. In an affidavit, she alleged that they “are being

physically, medically and educationally neglected by their parents,” who “have shown minimal


       1
         In addition to the six named children in these appeals and the twins born in 2009,
mother gave birth to M.S. on October 12, 2001. Custody of M.S. was previously awarded to
M.S.’s biological father in an unrelated proceeding following the child’s removal in New Jersey.
        Eight of the nine children were fathered by five men named in December 2010 petitions
to terminate each man’s parental rights in addition to those of mother.
        Evidence at the August 2011 hearing showed that mother was pregnant with her tenth
child in April 2011 when she entered the Project Link Program, a case management,
non-treatment program for women who have small children under three, who are pregnant, and
who use or are at risk of using drugs.
                                               -3-
supervision and concern for the health and welfare of their children.” Allie related that mother’s

blood alcohol level was twice the legal limit during a visit with the remaining living twin, S.S-J.,

on June 17, 2009, thereby preventing mother from visiting with the child. The parents signed a

safety plan on May 7, 2009, agreeing to cooperate with the hospital, all of the children’s

pediatricians, DSS, CHIP, and CAPTA, and not miss any further medical appointments for the

children. However, Allie reported that mother “has not made herself available to the

pediatricians, CAPTA, CHIP, [or] Dominion Day Services regarding the care of any of her

children.” In order to correct the situation, Allie had recommended that mother and father

receive substance abuse assessments, cooperate with psychological evaluations, cooperate with

all service providers and agencies assigned to assist them with the children, have the children see

a doctor at least once a year, and keep all medical appointments for the children. Allie

documented the following regarding services offered to the parents:

               The family currently receives TANF, Food Stamps and Medicaid,
               Section 8 to pay all of their rent, Access to pay all utilities, [and]
               SSI for [S.S-J]. Child Protective Services instituted a Safety Plan
               with appropriate provisions for the children’s care; however,
               Ms. Scott has not been cooperative with DSS, the children’s
               pediatricians, CHIP, CAPTA or the Dominion Day Services for
               her children. Due to Ms. Scott’s egregious lack of cooperation
               with the Department of Social Services, no additional services can
               be offered at this time without court order.

       On August 10, 2009, DSS received another complaint about mother. The caller alleged

mother was selling her food stamps, the house was filthy, and the children were wearing dirty

clothes to school. When Allie visited the house to investigate, mother was gone, leaving

twelve-year-old F.S. in charge of three of his younger siblings. F.S. did not know where his

mother was or when she would return, nor was he able to contact her. Allie confirmed the filthy

condition of the home, including spoiled food, roach infestation, trash and debris strewn about, a




                                                -4-
non-functioning smoke detector, and a mattress and dirty diapers on the floor. As a result, DSS

removed the children pursuant to an emergency protective order.

       Heather Woods is the foster care case worker for the children that were removed on

August 10, 2009. She testified that the initial foster care plan indicated a goal of return home

and listed the services offered to mother and father and several things the parents were required

to do, including completing all court-ordered assessments, evaluations, and classes, complying

with all recommended treatment, obtaining regular employment, keeping the home clean and

safe, maintaining sobriety, attending visitation, and demonstrating improved parenting skills.

DSS “also recommended that [mother] seek individual counseling, a [psychiatric] evaluation for

medication management and that she attend an evaluation with the Department of

Rehabilitat[ion] Services and again that she go to Substance Abuse Treatment.”

       Licensed clinical psychologist 2 Dr. Michael Chiglinsky met with mother on August 3,

August 19, and September 4, 2009 to assess her psychological condition “and parental capacity.”

Although mother denied substance abuse, Dr. Chiglinsky detected a slight odor of alcohol on

mother. Dr. Chiglinsky testified that mother had difficulty focusing her attention or

concentrating for an extended period of time, and she fell asleep on one occasion while working

independently in the evaluation process. Mother exhibited considerable psychological

disturbance, notably, the presence of “a mood disorder,” namely, a “major depressive syndrome

which is a severe depression that is [ongoing and] recurrent.” There were also indications of

bi-polarity, as well as depression, and manic “frenetic activity, [that was] not very focused.”

Moreover, mother demonstrated a great deal of “mental confusion” that prevented her from

focusing on and addressing her problems. Mother also exhibited “a paranoiac personality



       2
       Although the court reporter referred to Dr. Chiglinsky as a “clinical physiologist,” the
documents in the record show he is a clinical psychologist.
                                               -5-
disorder” that prevented her from accepting any responsibility for the removal of the children

and getting help. Despite mother’s denials of substance abuse, her profile indicated that “alcohol

abuse” may be a factor that needs to be addressed through rehabilitation. Dr. Chiglinsky opined

that mother has “severe impairments” that inhibit “her capacity to effectually parent her children

at this particular time,” and are likely to “put [her] children at risk for harm.” According to

Dr. Chiglinsky, “[s]tabilization would be necessary before you would be able to then make a

further determination of her capacity to parent in the future.” Dr. Chiglinsky recommended that

mother be further assessed and treated for a “substance related disorder” and receive vocational

rehabilitation so she could obtain employment. By working, mother would boost her self-esteem

and be able to better provide for her children. Dr. Chiglinsky outlined his recommendations and

prognoses for mother in the following testimony:

               Given the extent [and] the severity of her depression, her mood
               disorder, certainly a psychiatric evaluation was warranted. The
               purpose of that being to assist in elevating those negative
               biological symptoms that could be address[ed] by medication
               intervention through psychiatri[c] services. There was also the
               recommendation for p[sycho]logical treatment . . . collaboratively
               with the psychiatri[c] intervention. Because we know from the
               clinical research that the combination of medication, intervention
               and p[sycho]logical treatment is the most efficacious manner of
               intervening with these types of disorders. The likelihood of
               Ms. Scott’s compliance with that treatment regimen though was
               judged to be quite low. The probabilities of follow through would
               be quite low in part because of her personality disorder. The
               paranoia characteristics [and] also the tendency for her to be so
               disorganized in her thinking that follow through would not likely
               be a high probability type of issue.

       In other words, mother requires long-term treatment for psychological and substance

abuse problems, but her repeated refusals to acknowledge them or consistently obtain treatment

makes it unlikely she would actively participate in or succeed at treatment. Moreover, absent

such participation, her condition will worsen.



                                                 -6-
       On December 21, 2010, more than sixteen months after the children were removed, DSS

filed petitions for new foster care plans with permanent goals of adoption for the children.

Caseworker Woods described the services that had been offered to mother and provided the

following explanation for requesting a change from return home to adoption:

               Ms. Scott’s biggest barrier to date continues to be her denial of her
               substance abuse problem. As recently as December 9, 2010,
               Ms. Scott denied having a drinking problem. [She] was referred
               for a Substance Abuse Assessment and follow up treatment
               beginning in July 2009. She denied substance usage and declined
               inpatient detox until December 2009. Ms. Scott completed her
               thirty day inpatient program and was referred to the PHASES
               program at Blue Ridge upon her discharge in January 2010. She
               did not begin the PHASES program until March 2010. She had a
               positive breathalyzer of .115 on March 25, 2010 when she arrived
               for group. She was suspended from the PHASES program in May
               [2010] due to excessive absences and tardies. She was allowed to
               return in June [2010]. She attended sporadically and was
               suspended again for absences in August [2010]. She was offered
               individual sessions and counseling during this suspension but was
               not allowed to return to PHASES until October [2010]. She did
               not attend the individual sessions as offered. On October 14th
               [2010] she was referred to five day a week day treatment and was
               informed that she could also begin psychiatric care and counseling
               if she requested it. She attended one group on October 27th
               [2010]. She was invited to return to day treatment on November
               8th [2010] without a suspension for her absences. She attended for
               a few days and then was sent home when she attended group on
               November 10 [2010] and was positive for alcohol with a BAC of
               .156. She returned on November 12, [2010], missed the next six
               days and returned on November 18th [2010,] with a positive
               breathalyzer of .187. She was offered a bed in the detox program
               on that day and she declined. She was then suspended again on
               November 23rd [2010] for failure to attend. She is not eligible to
               return again until December 23rd [2010]. Her lead counselor,
               Joanna Jones, is recommending inpatient treatment at this time.

In her report, Woods noted that mother “has also not complied with individual counseling or

medication management referrals as recommended by the psychological evaluation.” Despite

numerous reminders to mother that she is required to participate in such programs as part of the

service plan, mother “continues to [deny substance abuse and emotional problems and] state that


                                               -7-
these are not services that she needs.” Although mother attended parenting classes, Woods

stated that she “has not successfully demonstrated an ability to practice what she has learned.”

Moreover, mother continues to remain in an abusive relationship with the father of the three

youngest children.

       Melissa West is a family reunification worker with DePaul Community Resources. West

first worked with mother from June 2009 until June 2010. West began working with mother

again on August 30, 2010, offering her “basically the same services” mother was previously

offered because mother did not follow through or complete those programs, especially a

substance abuse program. Thus, DSS “went back through the assessment through Blue Ridge

[Behavioral Health Care] and tried to get [mother] back started again with that [substance abuse]

program.”

       E.S-J. was born prematurely on April 1, 2008, and was not taken to a doctor again until

May 2009. As noted, the doctor diagnosed her condition as “failure to thrive,” and suspected

fetal alcohol syndrome and familial psychosocial problems. E.S-J. is now in a two-parent foster

home in which she has thrived. She has gained weight and is beginning to meet age appropriate

developmental milestones. She receives speech therapy and is increasing her vocabulary. The

doctor is performing tests to determine if she meets the criteria for fetal alcohol syndrome.

       Q.S. was born on August 6, 2006. During a home visit prior to his removal, the CPS

worker reported that Q.S. wore dirty, ill-fitting clothes and had not eaten that day. Early medical

records indicated an acute middle ear infection, abnormal blood chemistry (possibly lead

related), and “Failure to Thrive in childhood.” At the time of removal, he was significantly

underweight and had developmental delays in his speech. Since his removal, Q.J. has done

much better. The doctor is currently performing tests to determine if he suffers from fetal

alcohol syndrome.

                                               -8-
       A.S. was born on August 4, 2000. At the time of his removal, A.S. exhibited severe

behavior problems, had violent outbursts, and had missed fourteen days of school. He and his

brother, M.S., receive services for severe behavior problems. A.S. is currently in his second

foster home with foster parents who are willing and better able to meet all of his special needs

and where he feels safe and secure. He is performing much better in school and is in therapy to

address behavior and attachment issues.

       N.H. was born on March 3, 1999. Mother was six months late in getting her required

immunizations. She also failed to have her vision retested for uncorrected vision problems.

N.H. told DSS workers that her mother regularly drank and that she and her older brother, F.S.,

were often responsible for caring for the other children. Since placement in foster care, N.H. has

been attending school more regularly and excelling.

       M.S. was born February 25, 1998, and at the time of removal, he had missed several

medical appointments. M.S. was absent from school nine days, and he missed an additional

thirteen days while under suspension. Like A.S., M.S also had behavior and aggression issues

and is in therapy to address them. Since being placed in foster care, M.S. has matured. He has

learned to better express his emotions and deal with conflict. He is performing well in school.

Both M.S. and A.S. receive after-school services through Dominion Day Services. Staff

members reported that mother refused to meet with them to discuss concerns about the children,

telling them she did not have time to do so and the staff should drop the children from the

program.

       F.S. is mother’s oldest child and was born on September 26, 1996. At the time of his

removal, he had not seen his pediatrician in over two years. According to CPS worker Woods,

F.S. acts as “the father figure for all of the children” during group visits and mother treats him

more as a friend than her child. F.S. currently attends counseling and therapy sessions, and his

                                                -9-
foster home provides for his physical, mental, emotional, and educational needs. F.S. is

currently an honor roll student in the Honors Program at his school. He is healthy, safe, and

comfortable in his foster home and is beginning to learn independent living skills.

       Mother has not been employed since 2001, nor did she attempt to obtain employment or

employment skills or complete her GED during the period the children were in foster care.

Instead, she became pregnant with her tenth child.

       After considering all of the evidence and argument from counsel, the trial court approved

the changes of goals for all the children, finding by clear and convincing evidence that

termination of mother’s residual parental rights to each of the six children is in the best interests

of each child, and:

               [A] [T]here is no reasonable likelihood that the conditions which
               resulted in such neglect or abuse [of the children] can be
               substantially corrected or eliminated so as to allow them to return
               home safely within a reasonable period of time. . . . [Code
               § 16.1-283(B);]

               [B] [Mother] has, without good cause, been unable or unwilling
               within a reasonable period of time not to exceed twelve months
               from the date each of these children were placed in foster care to
               remedy substantially the conditions which led to or required the
               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 [Code
               § 16.1-283(C)(2)] . . . [; and]

               [C] [Mother’s] residual parental rights to a sibling of these
               children were involuntarily terminated by order of the Circuit
               Court of the City of Roanoke entered on January 3, 2011 [Code
               § 16.1-283(E)].


                                           DISCUSSION

                                 Sufficient Evidence to Terminate

       Mother first claims the trial court erred in finding the evidence sufficient to terminate her

parental rights to E.S-J., Q.S-J., A.S., M.S., N.H, and F.S. She claims at the time of the December

                                                - 10 -
2011 hearing, she “had completed all but a couple requirements,” in that she had completed a

psychological examination, domestic violence classes, parenting classes, and a thirty-day inpatient

substance abuse program, as well as visiting the children and attending the Phases Program.

       “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.”

Logan, 13 Va. App. at 128, 409 S.E.2d at 463. Where the trial judge hears the evidence ore

tenus, his decision is entitled to great weight and will not be disturbed on appeal unless plainly

wrong or without evidence to support it. See Lowe v. Dep’t of Pub. Welfare, 231 Va. 277, 282,

343 S.E.2d 70, 73 (1986).

       The children entered foster care in August 2009, following complaints of abuse, neglect,

and lack of supervision. At the time of removal, the children suffered various levels of neglect

and abuse. They had missed pediatric appointments and required immunizations, and suffered

from poor nutrition and lack of adequate supervision. Many of the children have special needs

which mother is incapable of handling due to her own deficiencies, which she has been unable or

unwilling to acknowledge, address, or overcome.

       According to Dr. Chiglinsky, mother would require a prolonged course of treatment in

order to stabilize her mood disorder and other psychological problems so as to be able to safely

parent the children, and he opined her chance of success was low. Moreover, mother’s condition

could worsen without treatment, further jeopardizing the health and safety of the children.

       DSS provided numerous services to the children and to mother, and it encouraged mother

to address her substance abuse and psychological/psychiatric problems. However, mother has

continually and repeatedly denied having psychological or substance abuse problems, resulting

in a failure to effectively and timely participate in a treatment program and making it impossible

for her to overcome those deficiencies. The record is devoid of any documentation that mother

                                                - 11 -
successfully completed a substance abuse program during the twenty-four-month period between

the children’s removal and trial, or that mother is participating in a program to address her mood

disorders, depression, and paranoia.

       Mother argues she participated in and completed most of the mandated requirements,

thus the evidence did not satisfy termination under Code § 16.1-283(B) and (C)(2). However,

mother does not challenge the finding under Code § 16.1-283(E), which allows termination upon

clear and convincing evidence that it is in the children’s best interests and that mother’s residual

parental rights to a sibling of the children were previously involuntarily terminated.

       All three statutory provisions require a showing that termination is in the children’s best

interests. 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).

       The evidence showed the children were neglected, abused, and improperly supervised

prior to removal, they have thrived since being placed in foster care and receiving DSS services,

and mother continues to abuse alcohol and have psychological problems that negatively affect

the children which she has failed to acknowledge or correct. Based on the children’s condition

and care before and after removal, and mother’s inability to correct the problems causing the

abuse and neglect, clear and convincing evidence supported the trial court’s decision that

termination was in the children’s best interests. Clear and convincing evidence also established

that mother’s residual parental rights to the children’s sibling, S.S-J., were previously terminated.



                                                - 12 -
Accordingly, the record supports the trial court’s decision to terminate under Code

§ 16.1-283(E).

        To the extent mother contends the trial court erred in terminating her residual parental

rights pursuant to Code § 16.1-283(B) and (C)(2), we need not reach this issue because we

conclude that the trial court’s decision terminating mother’s parental rights was warranted under

Code § 16.1-283(E).

                                     F.S.’s Consent to Adoption

        In Record No. 2216-11-3, mother presented the following additional assignment of error:

                 Error lies in the Trial Court’s attempts to explain the adoption
                 process to [F.S.] in order to ascertain if he consented to the
                 termination of his mother’s paternal [sic] rights.

        At the beginning of her one-page, two-paragraph argument, mother included the

following heading:

                      THE TRIAL COURT’S EXPLANATION OF THE
                 ADOPTION PREOCESS TO THE MINOR CHILD WAS
                 INCORRECT AND HIS CONSENT WAS NOT WILLINGLY
                 GIVEN THUS THE COURT WAS WITHOUT GROUNDS TO
                 TERMINATE THE PARENTAL RIGHTS OF SCOTT AND
                 APPROVE THE DEPARTMENT’S PERMANENCY
                 PLANNING GOAL OF ADOPTION FOR [F.S.].

        Pursuant to Code § 16.1-283(G), “residual parental rights shall not be terminated if it is

established that the child, if he is fourteen years of age or older . . . , objects to such termination.”

F.S. was fourteen years old at the time of the August 10, 2011 hearing in the trial court,

therefore, the parties and the trial court solicited whether or not he objected to termination of his

mother’s residual parental rights.

        Mother argues “[t]he evidence was insufficient as a matter of law to sustain a finding that

[F.S.] consented to the termination of the parental rights of his mother.”




                                                 - 13 -
       Mother’s attorney questioned F.S. and asked him, “One thing we have to find out is if

you object to termination of your mother’s parental rights, do you object?” F.S. answered,

“Yes.” During further questioning, the record demonstrates that F.S. appeared confused and did

not understand what termination of his mother’s residual parental rights entailed or meant, so the

parties, guardian ad litem, and trial judge provided several explanations. During those

explanations, F.S.’s guardian ad litem asked F.S. “what is it you want to happen,” and F.S.

replied, “I am interested in adoption.”

       The trial judge explained that terminating his mother’s residual parental rights meant

“cut[ting] off [his] legal relationship” with his mother such that she would “no longer ha[ve] a

legal relationship with [him],” and allow DSS to place him for adoption. F.S. was reluctant to

answer and indicated he felt pressured, so the parties suggested that everyone leave the

courtroom except counsel and the trial judge to relieve the pressure on F.S.

       There was further discussion as to what termination entailed, the effect of being placed

for adoption if he objects to termination, and whether he would continue to have telephone

contact with his mother. Mother objected to DSS’s counsel’s statement that “the contact will

remain the same,” arguing that decision “is completely at the discretion of the foster parent at

that point.” The trial judge noted there was no reason to expect contact would be cut off, but

redirected the issue and explained to F.S., “What we are talking about here” is whether you

object to termination, and if you do, “that means there will be no placement for adoption.”

       After repeated discussions and explanations, the following took place:

               THE COURT: We are again in session. [Counsel for the parties
               and the guardian ad litem are present]. Everybody else who is not
               here is [outside] to try to keep there from being any more pressure
               on you that is just because of the fact that you are being asked to
               make a statement that could have a lot to do with [your] future one
               way or the other. [F.S.] are you ready to say whether you object or
               do not object?

                                               - 14 -
               A. [F.S.] Yes.

               Q. Do you object to having your mother’s residual parental rights
               terminate?

               A. [F.S.] And basically what is that saying?

               Q. That is saying if you do not object then if her rights are
               terminated you could be placed for adoption.

               A. [F.S.] Okay.

               Q. If you do object her rights will not be terminated and you
               cannot be placed for adoption by the Department of Social
               Services. So I can ask it, do you object to having the court enter an
               order that will by terminating your mother’s rights leave the
               possibility of future placement for adoption.

               A. [F.S.] I do not object.

               Q. All right. Does anyone want to ask any other questions or are
               we - -

               MR. COVATI [for mother]: No, sir.

               MS. FERGUSON [for DSS]: No, Sir,

               MS. BERRY [guardian ad litem]: No, sir.

       In her sufficiency argument, mother claims that DSS misinformed F.S. about continued

phone contact with his mother, and the trial court’s explanation that there would be no possibility

F.S. could be placed for adoption if he objects to termination “further muddied the waters and led

to [F.S.] making a misinformed decision.”

       After F.S. finally answered and voiced no objection to termination, mother did not object

to the trial judge’s question nor question F.S. further to determine if his refusal to object was

based upon a misunderstanding. Although mother earlier objected when the trial judge stated

that if F.S. objects to termination he cannot be placed for adoption by DSS, her objection at that

time was without merit because she argued and ostensibly wanted to tell F.S that he could

change his mind and later object, and he could be placed for adoption “if the Department meets


                                                - 15 -
[all the requirements in the present hearing] except his consent.” The trial judge correctly

rejected that argument.

       Although the lengthy colloquy between the court, counsel, and F.S. resulted in much

confusion and incomplete explanations as to the effects of F.S.’s decision to object or not, he was

eventually asked, pursuant to the statute, whether he objected to termination, and he was

correctly told that if he did object, his mother’s rights would not be terminated and he could not

be placed for adoption. Those are accurate statements of the law. The trial judge carefully

questioned F.S. and was able to judge his understanding of the issue before him. “The credibility

of the witnesses and the weight accorded the evidence are matters solely for the fact finder who

has the opportunity to see and hear that evidence as it is presented.” Sandoval v.

Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). Viewing the totality of the

questions and explanations, and F.S.’s ultimate response to the straight-forward question finally

posed to him, we cannot say the trial judge erred in finding sufficient evidence that F.S. did not

object to termination.

       Accordingly, the decision of the trial court is affirmed.


                                                                                          Affirmed.




                                               - 16 -
