                               COURT OF APPEALS OF VIRGINIA


Present: Judges McClanahan, Haley and Senior Judge Willis


ROMAN LEE TAYLOR
                                                                 MEMORANDUM OPINION *
v.     Record No. 0672-10-3                                          PER CURIAM
                                                                   DECEMBER 7, 2010
CITY OF ROANOKE DEPARTMENT
 OF SOCIAL SERVICES


                   FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
                                Jonathan M. Apgar, Judge

                 (David W. Steidle, on brief), for appellant. Appellant submitting on
                 brief.

                 (William M. Hackworth, City Attorney; Heather P. Ferguson,
                 Assistant City Attorney; Lora A. Keller, Guardian ad litem for the
                 minor children, on brief), for appellee. Appellee and Guardian
                 ad litem submitting on brief.


       On March 18, 2010, the trial court entered an order terminating the parental rights of

Roman Lee Taylor (appellant) to his son, D.T., and daughter, L.T., pursuant to Code

§ 16.1-283(B) and 16.1-283(C)(2). On appeal, appellant contends the evidence was insufficient to

support the termination. Finding no error, we affirm the trial court’s decision.

                                          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)).

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       D.T. was born to appellant and his wife, Tonya Annette Taylor (Taylor), on March 26,

2001. L.T. was born to appellant and Taylor on October 1, 2004.

       The City of Roanoke Department of Social Services (DSS) had contact with appellant’s

family regarding a report of physical abuse of D.T. by appellant on December 4, 2006. Angela

Mitchell, a DSS social worker, then met with appellant and Taylor on February 23, 2007 to assess

the family situation. Appellant reported having a history of anger management issues, depression,

borderline schizophrenia, and ADHD. Appellant was on medications for these conditions, but he

sometimes did not take the drugs as prescribed. Appellant admitted that he used marijuana and that

D.T. had witnessed him viewing pornography. Taylor reported major depression, post-traumatic

stress disorder, panic attacks, and anxiety disorder. Taylor also had been diagnosed with diabetes.

DSS developed a service plan that included a variety of therapeutic services for appellant, Taylor,

and the children. Appellant and Taylor, however, declined the services offered by DSS.

       On June 5, 2007, the juvenile and domestic relations district court entered a protective order

requiring appellant and Taylor to cooperate with the services offered by DSS. Afterward, appellant

and Taylor completed psychological evaluations and permitted therapy in the home.

       D.T. was diagnosed with ADHD, oppositional defiant disorder, reactive attachment

disorder, and post-traumatic stress disorder. D.T. suffered from violent outbursts during which he

was aggressive and harmed himself. L.T. had been diagnosed with asthma and had behavioral

issues involving protracted temper tantrums.

       Through therapy from June to October 2007, D.T.’s behavior showed signs of improvement.

However, the therapy was terminated abruptly because appellant threatened Mitchell and the

therapist while they were in appellant and Taylor’s home.

       During her visitations to the home, Mitchell found it to be foul smelling and infested by

rodents. There were holes in the structure D.T. had caused during his violent outbursts. Appellant

                                                -2-
reported that D.T. had made holes in his mattress with a knife. During Mitchell’s visits, L.T.

usually wore nothing but a large t-shirt.

        In 2006 and 2007, there were two founded complaints of child abuse and neglect against

appellant. Taylor also had a founded complaint of child abuse and neglect. Appellant attended only

two sessions of the domestic violence prevention program he was required to complete and was

discharged from psychiatric treatment for failing to appear at appointments.

        During a psychological evaluation completed in July 2007, appellant acknowledged his

history of explosive and violent behavior in the home. Appellant said he used marijuana several

times a week because his medications did not provide a calming effect. Appellant expressed

resentment of D.T. and the problems he had caused in the home. The evaluator concluded that

appellant was not interested in parenting the children effectively and providing them with a safe

environment, nor was he capable of doing so.

        Pursuant to an emergency protective order, D.T. and L.T. were removed from the home on

October 10, 2007 because of appellant’s continued physical abuse of the children, his refusal to

participate in services, and his substance abuse. The removal was further based upon the children’s

behavioral issues and Taylor’s inability to protect them from abuse and neglect.

        The foster care plan approved on December 20, 2007 required both appellant and Taylor to

obtain treatment from a psychiatrist, obtain appropriate medications for their depression and mental

health conditions, and complete marriage counseling. They were required to attend individual

therapy, parenting classes, and anger management classes. Appellant was to complete substance

abuse treatment. Appellant and Taylor also were expected to maintain stable employment and

suitable housing.

        Appellant and Taylor were referred to Tony Leger for individual and marital counseling in

2008. Neither appellant nor Taylor completed individual counseling. They did not begin marital

                                                -3-
counseling until July 2009, after the termination proceedings began. Appellant and Taylor did not

obtain psychiatric care.

       Appellant and Taylor were offered biweekly supervised visitation with D.T. and L.T. D.T.

often began the visits by kicking or punching appellant. Appellant would sometimes interrupt the

sessions by discussing matters with the social worker rather than interacting with the children. Both

D.T. and L.T. exhibited severe behavioral reactions to visits with appellant and Taylor. In April

2009, D.T.’s visitation with appellant and Taylor was suspended because of his troubling behavior

before and after the visits. Visitation between L.T. and her parents likewise was suspended

temporarily due to her lengthy temper tantrums. Once visitation resumed between L.T. and her

parents in July 2009, her violent behavior began to escalate again.

       In August 2008, appellant and Taylor moved out of their home because the utilities had been

disconnected. They moved in with Taylor’s mother. Subsequently, appellant and Taylor twice

obtained an apartment of their own, but were unable to pay the rent and were forced to return to the

residence of Taylor’s mother. The home was small and could not accommodate D.T. and L.T.

       Appellant’s work history was sporadic. He was unemployed from June 2008 to July 2009,

when he began working at Taco Bell. He was fired the following month when his cash register

came up short. At the time of the termination hearing on December 16, 2009, appellant still had not

found another job.

       Appellant failed drug screenings on several occasions and sometimes refused to submit to

drug testing because he knew the result would be positive for marijuana. Appellant could not

produce a urine sample in October 2009, which was considered a positive screening. Appellant did

not obtain treatment for substance abuse.

       Wesley Bell, the DSS social worker who was assigned to the matter in June 2008,

concluded that both D.T. and L.T. require “an extremely high level of stability and structure in their

                                                 -4-
lives in order to be successful” and that they were receiving that stability in their foster homes. D.T.

had been assigned a behavioral specialist at school to keep him properly engaged and was having

more success at school. Nonetheless, D.T. had been hospitalized twice for homicidal and suicidal

ideations. L.T.’s behavior had improved dramatically while she was in foster care. She has

adjusted well to her foster home, which provides her with a structured environment.

        Appellant testified that he had completed an eighteen-week program on domestic violence

alternatives. Appellant admitted he had spanked D.T., but did not consider his actions to be abuse

because the child sustained no physical harm. The parties stipulated that D.T. had expressed his

desire to return home to appellant and Taylor.

                                             ANALYSIS

        Appellant argues that DSS did not prove by clear and convincing evidence the factors

required for termination under Code § 16.1-283(B) and 16.1-283(C)(2). Subsections (B) and (C)(2)

of Code § 16.1-283 provide “‘individual bases upon which a petitioner may seek to terminate

residual parental rights.’” Toms, 46 Va. App. at 269, 616 S.E.2d at 771 (quoting City of Newport

News Dep’t of Soc. Servs. v. Winslow, 40 Va. App. 556, 563, 580 S.E.2d 463, 466 (2003)).

Satisfactory proof under either subsection, standing alone, sustains a termination decision. See

Fields v. Dinwiddie County Dep’t of Soc. Servs., 46 Va. App. 1, 8, 614 S.E.2d 656, 659 (2005).

        In determining whether the evidence was sufficient to support a termination, we presume

the trial court “‘thoroughly weighed all the evidence, considered the statutory requirements, and

made its determination based on the child’s best interests.’” Id. at 7, 614 S.E.2d at 659 (quoting

Farley v. Farley, 9 Va. App. 326, 329, 387 S.E.2d 794, 796 (1990)). “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 Logan, 13 Va. App. at 128, 409 S.E.2d at 463).

In its capacity as fact finder, therefore, the circuit court retains “broad discretion in making the

                                                 -5-
decisions necessary to guard and to foster a child’s best interests.” Farley, 9 Va. App. at 328,

387 S.E.2d at 795.

        Under Code § 16.1-283(B), the parental rights of parents of neglected or abused children

may be terminated if the court finds by clear and convincing evidence that termination is in the best

interests of the children and that:

                        1. The neglect or abuse suffered by such child presented a
                serious and substantial threat to his life, health or development;
                and

                        2. It is not reasonably likely that the conditions which
                resulted in such neglect or abuse can be substantially corrected or
                eliminated so as to allow the child’s safe return to his parent or
                parents within a reasonable period of time. In making this
                determination, the court shall take into consideration the efforts
                made to rehabilitate the parent or parents by any public or private
                social, medical, mental health or other rehabilitative agencies prior
                to the child’s initial placement in foster care.

Code § 16.1-283(B) further provides that proof that the parent, “without good cause, ha[s] not

responded to or followed through with appropriate, available and reasonable rehabilitative

efforts” on the part of an agency such as DSS “to reduce, eliminate or prevent the neglect or

abuse of the child” is prima facie evidence of the condition set forth in Code § 16.1-283(B)(2).

        The evidence, viewed in the light most favorable to DSS, was clear and convincing that

the conditions resulting in the neglect or abuse of the children have not been eliminated in the

two years they have been removed from appellant’s household. DSS began offering services to

appellant and Taylor to assist their family in early 2007. Appellant and Taylor refused the

services offered by DSS and permitted therapy only after a protective order was entered. The

therapy ended, however, because appellant threatened to harm the social worker and the

therapist.

        D.T. and L.T. were removed from the home in October 2007 following founded

complaints against appellant of physical neglect and abuse. Appellant acknowledged that he

                                                -6-
used violence in the household against the children, but did not view his actions as abuse.

Appellant refused to admit that his own actions were the source of the family’s problems,

blaming D.T.’s behavior instead.

       At the time of the termination hearing, appellant had failed to follow through with the

requirements of the foster service plan. Appellant had not completed individual counseling or

obtained psychiatric care. Nor had appellant been treated for substance abuse. Appellant had

continued to use marijuana, despite the fact that his substance abuse was one basis for the

children’s removal. Moreover, appellant failed to maintain employment or provide suitable

housing for the family.

       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 special needs of D.T. and L.T. require that they be placed in a structured

environment. Moreover, D.T. and L.T.’s continued contact with their parents clearly was

detrimental to their progress in managing their behavioral issues. Notwithstanding D.T.’s stated

desire to return home to appellant, the record supports the trial court’s conclusion that

termination of appellant’s parental rights was in the best interests of the children.

       Considering all the facts and circumstances, there was clear and convincing evidence to

prove the factors required for termination of appellant’s parental rights pursuant to Code




                                                -7-
§ 16.1-283(B). 1 In light of this conclusion, we need not consider whether the evidence was

sufficient to support a termination under Code § 16.1-283(C)(2). See Fields, 46 Va. App. at 8,

614 S.E.2d at 659.

                                         CONCLUSION

       For the foregoing reasons, we affirm the decision of the trial court.



                                                                                    Affirmed.




       1
          Appellant also challenges the approval of the foster care plan with the goal of adoption
rather than returning the children home. However, as we conclude that the basis for the
termination was proven by clear and convincing evidence, our analysis necessarily subsumes
appellant’s challenge to the trial court’s approval of DSS’s goal of adoption because “a
preponderance-of-the-evidence standard governs judicial modification of foster care plans.”
Toms, 46 Va. App. at 265 n.3, 616 S.E.2d at 769 n.3. Thus, this issue need not be addressed
further.
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