                                               COURT OF APPEALS OF VIRGINIA


              Present: Judges Russell, AtLee and Malveaux
UNPUBLISHED



              TYEISHA ANTOINETTE THRASHER
                                                                             MEMORANDUM OPINION* BY
              v.       Record No. 1323-17-1                               JUDGE MARY BENNETT MALVEAUX
                                                                                  AUGUST 14, 2018
              NEWPORT NEWS DEPARTMENT OF
               HUMAN SERVICES


                               FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                                                 Bryant L. Sugg, Judge

                                 (Joshua A. Goff; Goff Voltin, PLLC, on brief), for appellant.
                                 Appellant submitting on brief.

                                 (Shannon M. Manning, Senior Assistant City Attorney; Gary S.
                                 Nachman, Guardian ad litem for the minor children; Sarfan &
                                 Nachman, LLC, on brief), for appellee. Appellee and Guardian ad
                                 litem submitting on brief.


                       The Newport News Circuit Court (“circuit court”) entered orders terminating the residual

              parental rights of Tyeisha Antoinette Thrasher (“mother”) to two of her children, pursuant to Code

              § 16.1-283(C)(2). She appeals those orders, arguing that the circuit court erred in denying her

              motion to strike and terminating her rights because the Newport News Department of Human

              Services (“DHS”) failed to prove, by clear and convincing evidence, that the termination criteria set

              forth in Code § 16.1-283(C) had been satisfied. For the reasons that follow, we affirm the circuit

              court.




                       *
                           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                        I. BACKGROUND

       We review the evidence in the light most favorable to DHS, the party that prevailed

below, affording it all inferences that are fairly deducible from this evidence. See Bristol Dep’t

of Soc. Servs. v. Welch, 64 Va. App. 34, 40, 764 S.E.2d 284, 287 (2014).

                             Events Prior to Termination Proceedings

       Mother and Carl Allen (“father”) married in 2015 and had twin girls, C.A. and C.J., in

November of that year. In February 2016, C.J. was admitted to the hospital for failure to thrive.

While there, she received a chest x-ray that indicated rib fractures. Further tests revealed that

C.J. suffered from a “pull and bend” fracture of her left leg, as well as old and new subdural

hematomas. A physician indicated that these injuries were non-accidental, and on March 10,

2016, DHS received a referral alleging that C.J. had been abused.

       The following day, DHS interviewed mother and father. Neither parent could explain

C.J.’s injuries, and both denied causing them. Mother insisted that she was her children’s

primary caretaker and responsible for all of their care.

       On March 15, 2016, C.A. visited the hospital for a complete body scan. That scan

revealed healing humerus and rib fractures. The physician who conducted the scan reported that

C.A.’s injuries were indicative of child abuse. DHS took the twins into custody and filed

emergency removal petitions on their behalf. Those petitions stated that C.J. and C.A. had

“multiple serious injuries that have been noted by the physicians . . . to be non-accidental. The

parents cannot provide an explanation for these injuries.” On March 16, the Newport News

Juvenile and Domestic Relations District Court (“J&DR court”) entered emergency removal

orders for C.J. and C.A.

       Following a May 10, 2016 hearing, the J&DR court entered adjudicatory orders finding

that C.J. and C.A. were abused or neglected as defined in Code § 16.1-228(1). The J&DR court

                                                -2-
also entered dispositional orders which transferred custody of the children to DHS and approved

initial foster care service plans with the goals of returning C.J. and C.A. to their home, with a

concurrent goal of relative placement. The plans called for the parents to maintain stable

employment and housing, complete parental capacity evaluations, participate in individual and

family therapy, and take parenting classes. Father was also required to undergo a psychiatric

evaluation, seek substance abuse treatment and medication management, and avoid criminal

activity that would jeopardize his probation.

       Dr. Jennifer Gildea, a licensed clinical psychologist, performed psychological and

parenting capacity evaluations of mother and father on June 14, 2016. During mother’s

evaluation, mother revealed that she “felt [that] another family member [had] injured [the

children].” Dr. Gildea recommended that mother receive parenting education to “improve her

awareness of developmentally appropriate disciplinary techniques and non-corporal discipline

techniques.” She also recommended that both parents receive marital and family therapy and

parenting coaching during any supervised contact with C.J. and C.A. Dr. Gildea specifically

noted that if either parent “cannot be ruled out as an abuser, [their] contact with the children

should remain supervised.” At the conclusion of her evaluations, Dr. Gildea also stated that

“[i]deally, it is recommended that polygraph testing of both parents be conducted in order to help

gain further clarity about events leading up to the children’s injuries, so that more pointed safety

planning and placement decisions may be made for this family.” Mother’s evaluation concluded

that she had “demonstrated a consistent pattern of failing to maintain stability and function with

the addition of life stressors.” Further, “[t]he ongoing risks of her inability to protect her

children are considered very high, while her prognosis for sustained stability over an extended

period of time is considered very low.” DHS provided copies of Dr. Gildea’s evaluations to

mother and father and reviewed her recommendations with them.

                                                 -3-
       An initial foster care review hearing occurred on August 5, 2016. Following the hearing,

the J&DR court entered orders continuing the goals of returning the children to their home,

concurrent with relative placement. However, relative placement efforts were unsuccessful and

mother and father were unable to provide the names of additional placement candidates.

       During the summer and fall of 2016, mother, who was serving in the United States Navy,

received and completed parenting classes through the military. Father received and completed

individual therapy through the military, and both mother and father received structural family

therapy through DHS. Neither parent participated in the polygraph testing recommended by

Dr. Gildea. Father did not complete his psychiatric evaluation, assessment for medication

management, drug treatment, or regular drug screenings. He was not forthcoming with DHS

about his drug use and criminal activities, and was only intermittently employed. DHS did not

offer parenting coaching to mother and father during this time, because parenting coaching was

an in-home service and matters had not progressed sufficiently for C.J. and C.A. to return home.

DHS conducted a number of supervised visitations, during which mother was the main caretaker

for the children. DHS asked mother and father whether C.J. and C.A. were ever alone with other

individuals during the period when their injuries occurred. The parents indicated they were their

children’s main caretakers, and father never admitted to third parties being with the children.

       DHS also provided structural family therapy to mother and father. During this therapy,

mother did not deny that C.A. and C.J. had suffered abuse or mistreatment. She also stated she

did not believe she was responsible for it. Father never admitted any responsibility for the abuse.

The foster care social worker assigned to C.A. and C.J. also discussed the children’s injuries with

mother and father, and they were unable to offer her a reasonable explanation of their daughters’

injuries. Neither parent indicated that the other parent was responsible for the injuries, and

although they said that when they visited relatives in Maryland they “felt like something had

                                                -4-
happened . . . , they weren’t sure.” Neither mother nor father ever provided DHS with

information about the possible source or sources of the injuries which DHS could investigate.

                        Termination Proceedings and Subsequent Events

       On December 2, 2016, DHS filed petitions for permanency planning hearings and new

foster care service plans for C.A. and C.J. Those documents reflected new goals of adoption for

the twins, and noted that while mother had made “some progress,” she also “ha[d] been

challenged with engaging in her services.” Further, during visitations, she would frequently

“daydream and have a flat affect.” In recommending that the goals for C.J. and C.A. be changed

to adoption, DHS noted “several contributing factors to include parents’ lack of sufficient

progress with their service plan responsibilities, housing and employment stability, and viable

relative placement options.” In particular, DHS stated its “great concern for the children’s safety

and well-being due to the parents’ . . . lack of honesty regarding the abuse the children

experienced” prior to their removal. Mother had denied she was responsible for the injuries to

her children and told Dr. Gildea she felt that another family member was the abuser, but “has

kept that person a secret” and “not held that family member responsible.” DHS concluded that

“[d]ue to this, [mother] has not shown the agency that she can prevent and protect her children

from bodily harm,” and there remained “a great concern on [sic] whether or not [mother] will be

able to protect her children from neglect and abuse in the near future.” On December 6, 2016,

DHS filed petitions to terminate mother’s residual parental rights to C.J. and C.A.

       Also in December, mother left the Navy at the conclusion of her enlistment. Rasheena

Harris, a family engagement worker with DHS, noted that around that time, mother began

experiencing difficulty maintaining stable housing, employment, and transportation. Father told

Harris “there [were] some disputes between himself and [mother] which caused the housing

folks to force them to leave” their apartment, and mother and father began living with relatives in

                                                -5-
Norfolk. Mother had lost her vehicle, and both mother and father began to miss scheduled

visitations, or to arrive late or cancel them at the last minute. Mother was expecting another

child, and moved to Baltimore for family support. Harris noted that mother’s relocation made it

difficult to coordinate visitations, and communication with her became “very sporadic.” Further,

“[a] lot of the ongoing services were difficult to follow-up on or to continue” because mother

was in another state. Father’s whereabouts were frequently unknown, and Harris often

experienced difficulty contacting him. Both parents ceased participating in structured family

therapy around January 2017, after mother relocated and the therapist lost contact with mother

and father. However, mother began calling the therapist occasionally for “telephone therapy,”

“just to check in and kind of get some focus.”

       A permanency planning hearing, initially scheduled for January 3, 2017, was continued

numerous times until March 16. Neither mother nor father attended the hearing. On May 30,

2017, the J&DR court entered permanency planning orders approving the new goals of adoption

for C.A. and C.J. and orders terminating the residual parental rights of mother and father,

pursuant to Code § 16.1-283(C)(1). Mother and father appealed to the circuit court.

       The circuit court conducted a hearing on the matter on August 14, 2017. Harris testified

that DHS changed the goals for the children to adoption “due to the lack of progress that was

being made . . . and the length of stay that the children had been in care.” Specifically, DHS was

unable to address “why the children came into care because of unexplained non-accidental

injuries . . . . We were not able to remedy that. That was the top reason they came into care.”

Ivy Cherry, the children’s foster care social worker, testified that DHS changed its goals for C.A.

and C.J. because they felt it was best for the children, given the limited progress being made

towards the goals identified for the parents. Specifically, “we weren’t able to get towards

parenting [coaching]. We needed to get to a point that we could have unsupervised visits.”

                                                 -6-
       Linda Meyers, the children’s foster parent from the time DHS took them into care,

testified that C.J. and C.A. were developing perfectly well and their initial medical problems had

been resolved. After their placement with Meyers, C.J. and C.A. received regular physical and

occupational therapy and were walking, crawling, running, and climbing stairs. The frequency

of the children’s “night terrors”—“screaming, not a baby cry but a scream”—had also declined.

Meyers’ extended family and other children in the household had become very involved with the

twins. Meyers stated that she and her husband were interested in adopting the two girls.

       Mother moved to strike DHS’s evidence, and the circuit court denied the motion. Mother

then testified that after she moved to Baltimore in late 2016, she was depressed,

“house-hopping,” and unemployed. However, in June, 2017, she found regular work in a

warehouse. Although she still lacked her own transportation, mother secured an apartment and

in August 2017 was living with father and their youngest child, who was born the previous

spring. She acknowledged that C.J. and C.A. were removed from her care because they had

sustained serious physical injuries. However, mother denied that she or father had caused those

injuries, although she agreed that she and father were the children’s caretakers and no one else

was in a position to harm them. Mother also admitted that since C.J. and C.A. had been removed

by DHS, she had attempted to get a protective order against father for domestic violence.

Mother expressed willingness to take the polygraph test suggested by Dr. Gildea.

       Mother renewed her motion to strike. In ruling from the bench, the circuit court noted

that “the problem in this case is the serious bodily injury to both of the children” and the need to

address that issue. The court discussed Dr. Gildea’s recommendations, including that mother

and father take polygraph tests “that would potentially root out who was responsible,” so that

“the Court . . . could set up guidelines” to prevent such abuse in the future. However, the court

noted that more than a year had passed since C.A. and C.J. were taken into care, and “the

                                                -7-
problem, be it the parents or somebody that the parents allowed [to have] access to the children,”

had not been identified so that the children could be “place[d] . . . into circumstances that would

. . . eliminate that problem.” Based on these circumstances, the circuit court found it was in the

best interests of C.J. and C.A. to terminate their parents’ residual parental rights. The court

granted the termination petitions and approved the new foster care service plans with goals of

adoption, and, on September 8, 2017, entered new permanency planning orders and orders

terminating mother’s residual parental rights, pursuant to Code § 16.1-283(C)(2). This appeal

followed.

                                           II. ANALYSIS

        After a child is “placed in foster care as a result of court commitment,” a court may

terminate a parent’s residual parental rights if it makes certain findings. Code § 16.1-283(C).

First, the court must find that termination of the parent’s rights “is in the best interests of the

child.” Id. The court must also find either that the parent failed to maintain contact with and to

provide or plan for the child’s future for six months after the child was placed in foster care, see

Code § 16.1-283(C)(1), or that the parent failed to remedy the circumstances that led to or

required the continuation of the child’s placement into foster care, see Code § 16.1-283(C)(2).

Specifically, before parental rights may be terminated under subsection (C)(2), the court must

find that the parent, “without good cause, ha[s] 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 . . . .” Code § 16.1-283(C)(2). The court also must find that the relevant

agencies made “reasonable and appropriate efforts” to help the parent remedy those conditions.

Id. All of these findings must be “based upon clear and convincing evidence.” Code

§ 16.1-283(C). Such evidence is “intermediate, being more than a mere preponderance, but not

                                                  -8-
to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It

does not mean clear and unequivocal.” Dep’t of Soc. Servs., Div. of Child Support Enf’t ex rel.

Comptroller v. Flaneary, 22 Va. App. 293, 304, 469 S.E.2d 79, 84 (1996) (quoting Martin v.

Pittsylvania Cty. Dep’t of Soc. Servs., 3 Va. App. 15, 21, 348 S.E.2d 13, 16 (1986)).

       We traditionally have “acknowledge[d] that ‘termination of . . . parental rights is a grave,

drastic and irreversible action.’” Farrell v. Warren Cty. Dep’t of Soc. Servs., 59 Va. App. 375,

400, 719 S.E.2d 329, 341 (2012) (quoting Helen W. v. Fairfax Cty. Dep’t of Human Dev., 12

Va. App. 877, 883, 407 S.E.2d 25, 28-29 (1991)). Nevertheless, we also must “presume that the

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

its determination based on the child’s [or children’s] best interests.’” Id. (alteration in original)

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

(2005)). Consequently, “[w]here, as here, the court hears the evidence ore tenus, its finding is

entitled to the same weight accorded a jury verdict, and it will not be disturbed on appeal unless

plainly wrong or without evidence to support it.” Welch, 64 Va. App. at 44, 764 S.E.2d at 289

(quoting Martin, 3 Va. App. at 20, 348 S.E.2d at 16).

       Mother assigns error to the circuit court for denying her motion to strike and terminating

her residual parental rights to C.J. and C.A., contending that the evidence presented by DHS

failed to establish that the criteria for termination under Code § 16.1-283(C) had been satisfied.1

We address each of the requirements for termination in turn.




       1
          Although mother assigns error to the circuit court for finding sufficient evidence to
terminate her residual parental rights under the criteria “set forth in . . . Code § 16.1-283(C),” we
note that the circuit court terminated her rights under the specific provisions of subsection (C)(2).
Thus, we confine our analysis to the circuit court’s “best interests of the child” determination and
its further findings under Code § 16.1-283(C)(2), and do not consider the sufficiency of the
evidence to terminate residual parental rights under Code § 16.1-283(C)(1).
                                                 -9-
                                 A. Best Interests of the Children

       Mother argues that the circuit court’s finding that it was in the best interests of C.J. and

C.A. for her residual parental rights to be terminated is not supported by clear and convincing

evidence. We find no merit to this argument.

       This Court has previously noted that “‘there is no simple, mechanical, “cut and dried”

way’ to apply the best interests of the child standard.” Welch, 64 Va. App. at 48, 764 S.E.2d at

291 (quoting Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988)). Rather, a child’s

best interests must be determined “in light of the facts of each case.” Eaton v. Wash. Cty. Dep’t

of Soc. Servs., 66 Va. App. 317, 331, 785 S.E.2d 231, 239 (2016) (quoting Toombs v.

Lynchburg Div. of Soc. Servs., 223 Va. 225, 230, 288 S.E.2d 405, 407 (1982)). In making such

a determination, a court “must evaluate and consider many factors,” including “the age and

physical and mental condition of the child,” the child’s needs, the role the “parent has played . . .

in the upbringing and care of the child,” and any other necessary factors. Id. (quoting Harrison

v. Tazewell Cty. Dep’t of Soc. Servs., 42 Va. App. 149, 161, 590 S.E.2d 575, 581-82 (2004)).

“The best interests of the child are to be determined at the time of the termination hearing.”

Akers v. Fauquier Cty. Dep’t of Soc. Servs., 44 Va. App. 247, 259, 604 S.E.2d 737, 742 (2004).

       In the instant case, the circuit court’s best interests determination relied heavily upon two

factors: the need to protect C.J. and C.A. from further abuse and injury, and the passage of more

than a year since the children were placed in foster care. Mother acknowledged that her children

were removed from her care because they had sustained serious physical injuries. She also

claimed that she and father were the children’s caretakers and that no one else had been in a

position to harm C.J. and C.A. She denied that she had caused the children’s injuries, and stated

that she felt another family member was responsible, but would not identify that person. Neither

mother nor father ever provided DHS with information about the person or persons possibly

                                                - 10 -
responsible for the injuries which DHS could investigate. Mother had sought a protective order

against father for domestic violence, and was living with him at the time of the circuit court

proceedings. Under these facts and circumstances, it was impossible for DHS to eliminate

mother or father as possible sources of the abuse, and thus impossible for DHS to consider

potentially exposing C.J. and C.A. to further physical harm by returning them to mother’s

unsupervised care.

       Further, while additional information indicating who was responsible for the abuse might

eventually have come to light, thus enabling the circuit court to establish guidelines to prevent

further abuse, seventeen months had passed since C.J. and C.A. were placed in foster care. Code

§ 16.1-283(C)(2) establishes a twelve-month time limit for substantial remediation of the

conditions which led to a child’s placement in foster care, and this time limit “was designed to

prevent an indeterminate state of foster care ‘drift’ and to encourage timeliness . . . in addressing

the circumstances that resulted in the foster care placement.” Thach v. Arlington Cty. Dep’t of

Hum. Servs., 63 Va. App. 157, 171, 754 S.E.2d 922, 928-29 (2014) (quoting L.G. v. Amherst

Cty Dep’t of Soc. Servs., 41 Va. App. 51, 56, 581 S.E.2d 886, 889 (2003)). If those

circumstances are not addressed within the statutory time frame, “the court may act to prevent

the child from lingering in foster care,” L.G., 41 Va. App. at 57, 581 S.E.2d at 889, since “[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 [her] responsibilities,” Tackett v.

Arlington Cty. Dep’t of Hum. Servs., 62 Va. App. 296, 322, 746 S.E.2d 509, 522 (2013)

(quoting Kaywood v. Halifax Cty. Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492,

495 (1990)). In light of these facts and circumstances, the circuit court reasonably determined it

was not in the best interests of C.J. and C.A. to remain indefinitely in foster care, in the hope that

their abuser might someday be revealed or discovered to be someone other than a parent.

                                                - 11 -
       Further, the evidence supports that C.J. and C.A. were thriving in the care of a foster

parent who hoped to adopt them. C.J. had been hospitalized for failure to thrive prior to her

removal by DHS, but she and C.A. had seen their medical issues resolved and remediated by

therapy in their foster home. The twins were experiencing night terrors less frequently, and had

developed supportive relationships with their foster parent’s other children and family members.

C.J. and C.A. had spent all but the first four months of their twenty-one months of life with their

foster parent, who, with her husband, now wished to give them a permanent home.

       Based upon these facts and circumstances, we are satisfied that clear and convincing

evidence supports the circuit court’s best interests determination. We therefore cannot say that

its best interests finding was plainly wrong.

             B. Failure to Substantially Remedy Conditions within Twelve Months

       Mother also argues that the circuit court’s finding that she was unwilling or unable,

without good cause and within a reasonable period of time, to substantially remedy the

conditions which led to her children’s foster care placement is not supported by clear and

convincing evidence. She contends the evidence in fact proves the opposite, for two reasons.

       First, mother argues she substantially remedied the conditions at issue when she complied

with DHS recommendations by completing parenting classes, participating in structured family

therapy and regular visitations, submitting to a psychological and parenting capacity evaluation,

and finding steady employment and stable housing after she moved to Baltimore. Mother

maintains that only by declining to undergo a polygraph test did she fail to comply with DHS

recommendations and that this was no basis for terminating her residual parental rights because

polygraph testing was suggested, not required, such tests are scientifically unreliable and

untrustworthy, their results are inadmissible during revocation or other court proceedings, and

evidence of a person’s unwillingness to submit to such a test is also inadmissible.

                                                - 12 -
       We find no merit to mother’s argument that the evidence proves she substantially

remedied conditions by complying with DHS recommendations. While DHS acknowledged, in

its December 2016 foster care service plan submissions to the J&DR court, that mother had made

“some progress” toward achieving the return home of C.J. and C.A., it also noted that she had

been “challenged in engaging with her services.” Mother completed parenting classes, but her

participation in structured family therapy gradually decreased and then ceased in 2017, except

for occasional one-on-one telephone calls to “check in” with her therapist and “kind of get some

focus.” Mother also missed a number of scheduled, supervised visitations, or cancelled them at

the last minute. When she did attend, she at times appeared disengaged and exhibited a flat

affect. Mother did find stable employment and housing after moving to Baltimore, but only after

an extended period of unemployment and housing instability. Prior to her relocation, she was

unemployed after leaving the Navy and had lost her apartment when disputes with father caused

the housing authorities to force them to leave. Mother did complete a psychological and

parenting capacity evaluation with Dr. Gildea, but that June 2016 evaluation indicated challenges

that would continue to prove problematic for mother over the following year. Dr. Gildea noted

mother’s “consistent pattern of failing to maintain stability and function with the addition of life

stressors,” and when mother ceased her service with the Navy, lost her housing, and again

became pregnant in late 2016, an extended period of instability and reduced function followed.

During this period, mother’s communication with DHS became “very sporadic.” Thus, the

evidence contradicts mother’s argument and supports DHS’s conclusion that even without C.J.

and C.A. back in her care, mother demonstrated an inability to navigate life stressors and a lack

of sufficient progress with her service plan goals. Lastly, while Dr. Gildea did suggest that

mother and father submit to polygraph tests to help clarify the events that preceded their

children’s injuries, and while both mother and father initially refused those tests, each later

                                                - 13 -
testified in circuit court that they would agree to take such a test. Thus, contrary to mother’s

implication, the circuit court could not have relied upon mother’s initial refusal to take a

polygraph test as a basis for terminating her residual parental rights.

       Second, mother argues she substantially remedied the conditions at issue by

acknowledging the seriousness of her children’s injuries and determining to be vigilant, so that

C.J. and C.A. are protected and do not suffer intentional injuries again. Mother contends that her

inability to explain how C.J. and C.A. suffered their injuries did not justify terminating her

parental rights under Code § 16.1-283(C), because the statute does not require her to confess

having caused her children’s injuries, or to explain how or by whom the injuries were inflicted.

       We find this argument without merit. Mere acknowledgement of the seriousness of the

abuse found by the J&DR court, and of the necessity of protecting C.J. and C.A. from abuse,

does not remedy the condition which led to the children’s foster care placement—i.e., their

exposure to non-accidental injury at the hands of an unknown party or parties, where neither

mother nor father could be excluded from culpability. Determining to be vigilant and protect

one’s children also falls short of remedying that condition. These alleged proofs of substantial

remediation are no more than acknowledgements and expressions of the duties owed by every

parent to their children. See Barrett v. Commonwealth, 268 Va. 170, 184-86, 597 S.E.2d 104,

111-12 (2004) (discussing, in the context of convictions for criminal neglect in violation of Code

§ 18.2-371.1(A) and (B), a parent’s duty of injury prevention and protection). Further, with

respect to mother’s contention that Code § 16.1-283(C) did not require her to explain how or by

whom her children were abused, we note this Court’s previous observation that termination

decisions under Code § 16.1-283(C)(2) “hinge . . . on the demonstrated failure of the parent to

make reasonable changes,” thus “requir[ing] the court to determine whether the parent has been

unwilling or unable to remedy the problems.” Thach, 63 Va. App. at 170, 754 S.E.2d at 928

                                                - 14 -
(second alteration in original) (quoting Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257,

271, 616 S.E.2d 765, 772 (2005)). Here, fourteen months before the circuit court terminated

mother’s residual parental rights, mother told Dr. Gildea that she felt a family member was

responsible for the children’s injuries. However, mother kept the individual’s identity secret.

Mother’s ongoing refusal to identify the suspected abuser of her children, long after she revealed

her suspicion and longer still after C.J. and C.A. were placed in foster care, was a demonstrated

failure of mother to make a reasonable change in her behavior—a change which would have

helped remedy the conditions which led to foster care placement by assisting, or even resolving,

DHS’s efforts to establish culpability for the abuse.

       We are satisfied that clear and convincing evidence supports the circuit court’s finding

that mother was unwilling or unable, without good cause and within a reasonable period of time,

to substantially remedy the conditions which led to foster care placement for C.J. and C.A. The

children were taken into care because they had been physically abused by an unknown person or

persons, and neither parent could be excluded from responsibility for that abuse. Mother and

father each maintained they were innocent of the abuse, and each insisted the other was innocent.

Both indicated they were the children’s main caretakers, and mother insisted she was the primary

caretaker, responsible for all the care of C.J. and C.A. Mother testified that only she and father

were in a position to harm the children, and father never admitted to third parties being with the

children during the time when the injuries occurred. Thus, neither mother nor father could

provide an explanation for their children’s non-accidental injuries, since by their accounts, they

were not responsible for the injuries and no one else could have been responsible. While mother

did express suspicion that a family member was at fault, she would not divulge the family

member’s name. In light of these circumstances, neither mother nor father could be excluded as

a potential abuser, and DHS was unable to address why the children came into foster care or to

                                               - 15 -
return them to their parents. Nor could DHS progress with the children’s service plans, because

they could not allow unsupervised visits or provide in-home parenting coaching. Further, mother

had sought a protective order against father, alleging domestic violence, yet continued to live

with him at the time of the termination hearing. A reasonable fact finder could have concluded

from this evidence that mother was, without good cause, unwilling or unable to take the steps

necessary to substantially remedy the conditions at issue, by being forthcoming with DHS and

assisting their efforts to ensure the children could safely return home. That fact finder could also

have concluded that the seventeen months between the children’s foster care placement and the

circuit court’s termination of mother’s residual parental rights was a more than reasonable time

for mother to substantially remedy conditions, and well in excess of the twelve-month statutory

period prescribed by Code § 16.1-283(C)(2). Thus, we cannot say the circuit court was plainly

wrong in reaching the same conclusions.

                         C. Reasonable and Appropriate Agency Efforts

        Mother also argues that the circuit court’s finding that DHS made reasonable and

appropriate efforts to help her substantially remedy the conditions at issue is not supported by

clear and convincing evidence. Specifically, she contends that DHS “made little effort to offer

services to [her].”2


        2
         Mother further contends that DHS failed to offer her services after she moved to
Baltimore, or to refer her to services there. However, mother failed to preserve this argument by
presenting it to the circuit court, either in her motion to strike or in closing argument. “The
primary purpose of requiring an argument to be made to a trial court is ‘to alert the trial judge to
possible error so that the judge may consider the issue intelligently and take any corrective
actions necessary to avoid unnecessary appeals, reversals and mistrials.’” White v.
Commonwealth, 67 Va. App. 599, 604, 798 S.E.2d 818, 820 (2017) (quoting Neal v.
Commonwealth, 15 Va. App. 416, 422, 425 S.E.2d 521, 525 (1992)). Our Rule 5A:18 embodies
this purpose, by providing, in pertinent part, that “[n]o ruling of the trial court . . . will be
considered as a basis for reversal unless an objection was stated with reasonable certainty at the
time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the
ends of justice.” Mother does not argue for the application of the good cause or ends of justice
exceptions to the rule, “and we will not invoke them sua sponte.” Williams v. Commonwealth,
                                                  - 16 -
       We find no merit in this argument, and are satisfied that clear and convincing evidence

supports the circuit court’s finding that DHS made “reasonable and appropriate efforts” to help

mother remedy the conditions that led to her children’s foster care placement. The “reasonable

and appropriate efforts” requirement under Code § 16.1-283(C)(2) must be interpreted “in

accordance with the language chosen by the legislature. ‘Reasonable and appropriate’ efforts

can only be judged with reference to the circumstances of a particular case.” Harrison, 42

Va. App. at 163, 590 S.E.2d at 582-83 (quoting Ferguson v. Stafford Cty. Dep’t of Soc. Servs.,

14 Va. App. 333, 338, 417 S.E.2d 1, 4 (1992)). “Thus, a court must determine what constitutes

reasonable and appropriate efforts given the facts before [it].” Id. at 163, 590 S.E.2d at 583.

Here, DHS identified mother’s need for an improved understanding of developmentally

appropriate and non-corporal disciplinary techniques for her children. It also identified mother’s

challenges maintaining stability and function in her life when confronted with stressors, and the

high risk that she would be unable to protect her children. To address these needs, challenges,

and risks, DHS offered mother a suite of services to improve her parenting skills, marital and

family dynamics, resiliency, and relationships with her children. While DHS did not provide

parenting coaching, it refrained from doing so only because mother and father had not

progressed sufficiently for C.J. and C.A. to stay unsupervised in their parents’ home, where the

coaching was to occur. DHS continued to offer these services throughout a nine-month period,

while they pursued an ultimate goal of returning the children to their home, and only began to

withdraw services after it became clear that a goal of adoption was in the best interests of C.J.

and C.A. Further, DHS repeatedly engaged with mother in an effort to determine who was




57 Va. App. 341, 347, 702 S.E.2d 260, 263 (2010). Thus, because mother failed to present to the
circuit court her argument that DHS offered her no services or assistance after she moved to
Baltimore, we consider only her argument that DHS “made little effort” to offer her services
before her move.
                                             - 17 -
responsible for the abuse of C.J. and C.A. DHS offered these wide-ranging services even as

mother began to avail herself of them less frequently. In light of this evidence, we cannot say the

circuit court was plainly wrong in finding that the efforts of DHS to assist mother were

reasonable and appropriate.

                                       III. CONCLUSION

       Clear and convincing evidence supports the circuit court’s factual findings that the

termination of mother’s residual parental rights was in the best interests of C.J. and C.A., that

mother was unwilling or unable, without good cause and within a reasonable period of time not

to exceed twelve months, to substantially remedy the conditions which led to her children’s

foster care placement, and that DHS made reasonable and appropriate efforts to help mother

attempt to substantially remedy those conditions. Thus, the circuit court did not err in denying

mother’s motion to strike and terminating her residual parental rights, because the termination

criteria under Code § 16.1-283(C) were satisfied. Consequently, we affirm the circuit court’s

termination of mother’s residual parental rights.

                                                                                           Affirmed.




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