                              COURT OF APPEALS OF VIRGINIA


Present: Judges Petty, Alston and Senior Judge Coleman
Argued at Alexandria, Virginia


DAWN FARRELL
                                                                        OPINION BY
v.     Record No. 1872-10-4                                      JUDGE ROSSIE D. ALSTON, JR.
                                                                     JANUARY 10, 2012
WARREN COUNTY DEPARTMENT
 OF SOCIAL SERVICES


                     FROM THE CIRCUIT COURT OF WARREN COUNTY
                                 Dennis L. Hupp, Judge

               Howard J. Manheimer for appellant.

               Neal T. Knudsen for appellee.

               (Thomas H. Sayre, on brief), Guardian ad litem for the infant
               children. Guardian ad litem submitting on brief.


       Dawn Farrell (mother) appeals the trial court’s decision to terminate her parental rights to

her three infant children under Code § 16.1-283(B). Mother contends that the trial court erred in

four respects. First, mother argues that the trial court erred in basing its finding that the children

E. and W. were abused and neglected on its determination that the child A. was abused and

neglected. Second, mother asserts that the evidence was insufficient to support the trial court’s

finding that E. and W. suffered abuse or neglect that presented a serious and substantial threat to

their lives, health, or development. Third, mother challenges the sufficiency of the evidence

supporting the trial court’s finding that the conditions resulting in the neglect or abuse of the

three children could not be remedied within a reasonable period of time. And fourth, mother

assigns as error the trial court’s decision to terminate her parental rights without giving her an

opportunity to remedy the conditions leading to the children’s removal. For the following
reasons, we find that the trial court did not err in any aspect that mother raises and affirm the

decision below.

                                          I. OVERVIEW

       Because this case involves multiple hearings and decisions, we begin with an overview of

the process that led to the ultimate result in the trial court. Code § 16.1-251 allows a juvenile

and domestic relations district court (JDR) to enter an emergency order allowing the Department

of Social Services (Department) to remove a child from his custodian’s or parent’s custody. The

JDR court may issue this order ex parte so long as it is accompanied by a petition alleging that

the child is abused or neglected and an affidavit or sworn testimony in person before a judge or

intake officer. Code § 16.1-251. That affidavit or sworn testimony must establish that the child

“would be subjected to an imminent threat to life or health to the extent that severe or

irremediable injury would be likely to result” without the removal and that the Department has

made reasonable efforts to prevent the removal but there are no less drastic alternatives that

would “reasonably protect the child’s life or health pending a final hearing on the petition.”

Code § 16.1-251(A).

       The JDR court must then hold a preliminary removal hearing within five business days of

the child’s removal. Code § 16.1-251(B). At the preliminary hearing, the Department must

prove by a preponderance of the evidence the same elements required to obtain the emergency

removal order, specifically 1) imminent threat of injury or irremediable harm; 2) reasonable

efforts to prevent removal from the home; and 3) no less drastic alternative than removal exists,

for the JDR court to continue the child’s removal from the home. Code § 16.1-252(E).

Additionally, the JDR court “shall determine whether the allegations of abuse or neglect have

been proven by a preponderance of the evidence,” unless the parents or custodian, guardian ad

litem or petitioning department objects. Code § 16.1-252(G). If a party to the proceeding

                                                -2-
objects, then the JDR court must schedule an adjudicatory hearing on a date within thirty days of

the preliminary hearing. Id. If no party objects, and the JDR court finds that the child at issue

was abused or neglected, the JDR court must schedule a dispositional hearing for a date within

seventy-five days of the preliminary hearing. Code § 16.1-252(H).

       Regardless of whether the JDR court requires the Department to prove the abuse or

neglect at the preliminary removal hearing or the adjudicatory hearing, the Department will have

to establish that the child is abused or neglected under one of the definitions listed in Code

§ 16.1-228. For ease of reference, throughout this opinion we will refer to the JDR court’s and

trial court’s decision on this issue as the “abused or neglected determination.”

       As noted above, once the JDR court finds a child to be abused or neglected, it may

proceed to the dispositional hearing and take evidence on one of the dispositions listed in Code

§ 16.1-278.2. Code § 16.1-278.2(A)(7) allows, inter alia, the JDR court to “[t]erminate the

rights of the parent pursuant to [Code] § 16.1-283.” Because this case involves a termination of

parental rights under Code § 16.1-283, we will refer to this final stage as either the “dispositional

hearing” or the “termination decision.” It is critical to understand that regardless of what

subsection of Code § 16.1-283 the Department proceeds under, it must prove each of its

allegations by clear and convincing evidence before the JDR court may terminate a parent’s

parental rights to his or her child. Santosky v. Kramer, 455 U.S. 745, 747-48 (1982). Moreover,

a dispositional order entered pursuant to this statutory scheme is a final order from which a party

may appeal in accordance with Code § 16.1-296. Finally, when an appeal is taken to the circuit

court in a case involving termination of parental rights brought under Code § 16.1-283, the

circuit court is obligated to hold a de novo hearing on the merits of the case within ninety days of

the perfecting of the appeal. Code § 16.1-296(D).




                                                -3-
                              II. FACTS AND PROCEEDINGS BELOW

           On appeal, “we view the evidence and all reasonable inferences in the light most

favorable to the prevailing party below, in this case the Department.” Jenkins v. Winchester

Dep’t of Soc. Servs., 12 Va. App. 1178, 1180, 409 S.E.2d 16, 18 (1991) (citing Martin v.

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

                                         A. The First Removal

           So viewed, the evidence indicated that mother has been married to father at all relevant

times to this case, and father is the biological father of all children involved in this case. Their

daughter, E., was born on November 17, 2005. On the same day mother tested positive for

cannabinoid, an illegal drug. On November 12, 2006, mother gave birth to premature twins, A.

and W., and the twins tested positive for cocaine at birth. Just two days later, on November 14,

2006, mother tested positive for cocaine and tetrahydrocannabinol (“THC”). Mother did not

obtain prenatal care prior to the births of the children and did not know she was having twins

until shortly before they were born.

           On November 17, 2006, the Warren County Department of Social Services (the

“Department”) summarily removed all three children from mother’s and father’s home.

Following a hearing, the juvenile and domestic relations district court (“JDR court”) found that

all three children were abused or neglected as defined in Code § 16.1-228(1), each of them being

a child:

                          Whose parents or other person responsible for his care
                  creates or inflicts, threatens to create or inflict, or allows to be
                  created or inflicted upon such child a physical or mental injury by
                  other than accidental means, or creates a substantial risk of death,
                  disfigurement or impairment of bodily or mental functions . . . .

           In January 2007, the JDR court entered a dispositional order, vesting custody of all three

children with the Department. The JDR court also approved foster care plans for the children,

                                                  -4-
requiring both mother and father to: maintain adequate housing, maintain income, provide

household bills to the Department, maintain contact with the children, complete parental capacity

evaluations, complete substance abuse evaluations and treatment, submit to drug screens, and

execute releases so the Department could monitor the situation. In July 2007, the Department

returned the three children to mother’s and father’s physical custody. In October 2007, mother

and father completed their obligations under the foster care plans, and the JDR court restored full

legal custody to them for all three children.

                        B. A.’s Medical Problems and the Second Removal

        On November 16, 2007, mother and father brought A. to a medical appointment with his

pediatrician, Dr. Deborah Dunn. Dr. Dunn expressed concerns to mother and father about A.’s

low weight and malnourishment. A. was suffering from what Dr. Dunn later discovered was a

milk allergy. Dr. Dunn scheduled a follow-up appointment for December 17, 2007, but neither

parent brought A. to see Dr. Dunn on that date, nor did they reschedule the appointment.

        On March 17, 2008, mother took A. to the emergency room at Warren County Memorial

Hospital (“Warren County”) because he was vomiting uncontrollably. 1 On April 2, 2008,

Dr. Dunn saw A. again for the first time since the November 2007 appointment, when A. was

referred to her after mother brought him to the emergency room for vomiting. Dr. Dunn testified

that at this point A. was extremely thin and very sick, vomiting, and listless. Dr. Dunn sent A. to

Warren County, where he spent a week recovering from his malnourishment. At trial, Dr. Dunn

testified that she had never seen another child so malnourished from a milk allergy. Dr. Dunn

        1
         At trial, mother provided various conflicting accounts of how A. sustained a head injury
shortly before the vomiting began. She testified that although she believed that A. had fallen
down the stairs prior to this visit, she did not tell the doctors about it. Mother also testified that a
few days prior A. had hit his head on a coffee table, but she did not seek any treatment for A. at
that time because he did not cry or seem hurt, although she acknowledged that the blow left a
mark. Additionally, mother asserted that W. hit A. on the head with a Tonka truck later in
March.

                                                 -5-
also noted that A.’s condition would not have become so severe if mother or father had brought

A. back for his scheduled follow-up visit in December 2007.

       On April 30, 2008, father allegedly returned from speaking with someone outside the

home and found A. draped over a chair with one side of his body rigid, appearing as if he were

having a seizure. Father administered rescue breathing and called for an ambulance. Mother

was not present at the home when this incident occurred but drove to the emergency room after

hearing of the incident while father stayed at home with the other two children. After being

stabilized in the emergency room at Warren County, doctors transferred A. to University of

Virginia Children’s Hospital (“UVA”). A.’s treating physician and specialists at UVA diagnosed

him with subdural hematomas of varying ages along with bilateral retinal hemorrhaging.

Dr. Patricia Scherrer, a pediatric critical care specialist who examined A. and oversaw his

treatment at UVA, concluded that A.’s head injuries were most consistent with non-accidental

trauma. Dr. Scherrer based this conclusion on the lack of history to explain A.’s injuries and

further testified that none of the parents’ proposed explanations – A.’s allegedly hitting his head

on the coffee table or being hit on the head with a Tonka truck – could have caused the type of

injuries A. had sustained. Dr. Scherrer testified, contrary to mother’s explanations at trial, that

she knew nothing about a fall down the stairs, and mother admitted that she did not tell

Dr. Scherrer about the fall. Dr. Dunn reviewed the reports from UVA and testified at trial that

she also believed A.’s injuries were consistent with non-accidental trauma.

       On May 1, 2008, the Department filed a petition for emergency removal of the three

children and removed them from the parents’ custody a second time. The following day, May 2,

2008, the Warren County Sheriff’s Office started an investigation regarding the circumstances of

A.’s injuries. Investigator Raymond Fogle interviewed mother and father about A.’s injuries.

During this interview, father explained to Investigator Fogle that A. had fallen down some stairs

                                                -6-
in the family home in early March 2008. Investigator Fogle was unable to conduct any further

interviews with mother and father because their attorneys advised the sheriff’s office that neither

parent would make any additional statements to the police while the civil case proceeded through

the courts.

         At trial father testified consistent with his discussion with Investigator Fogle about the

fall. Father stated that he had put a gate up at the top of the stairs and went down to the

basement. He speculated that A. and E. struggled at the gate and A. somehow fell down the

stairs into the basement. Father testified that he found A. unconscious at the bottom of the stairs

and had succeeded in reviving him through infant CPR. After A. regained consciousness, father

stated that A. began running and playing with his siblings and, as a result, father did not seek

medical attention for him.

                                  C. Proceedings in the JDR court

         After the Department removed the children from the parents a second time, the JDR court

held a preliminary hearing on May 9, 2008. The parents objected to the JDR court’s

determination of abuse or neglect at this hearing, and the JDR court set an adjudicatory hearing

for June 6, 2008. At that hearing – which actually occurred on July 8, 2008 – the JDR court

found that A. was abused or neglected and that E. and W. were at risk of being abused or

neglected due to the parents’ treatment of A. The JDR court then scheduled the dispositional

hearing for September 19, 2008, noting that the parties waived the requirement for a hearing

within seventy-five days. On September 11, 2008, the Department filed petitions for termination

and petitions requesting a foster care review hearing with the stated goal of adoption for each

child.

         After the dispositional hearing, the JDR court entered an order on January 12, 2009,

terminating both parents’ parental rights to the three children pursuant to Code § 16.1-283(B).

                                                 -7-
Both parents appealed to the circuit court. The circuit court (hereinafter “trial court”) held

evidentiary hearings de novo on November 5, 6, and 30, 2009, to determine the merits of the

abuse or neglect allegations. After determining that the children were abused or neglected, the

trial court set a dispositional hearing for December 8, 2009.

                  D. The Abused or Neglected Determination in the Trial Court

       At the hearing on the abuse or neglect petition, Jennifer Mundy testified that she had been

the children’s foster mother during the first removal from November 2006 through July 2007.

She asserted that father had called her in early April 2008, looking for work. Mundy stated that

when she asked about the children, father admitted that A. had fallen down the stairs but said he

and mother brought him to the hospital because A. started uncontrollably vomiting a few days

later. Additionally, Mundy testified that during the same conversation, father said that mother

told the Department that A. had hit his head on a coffee table because they were worried about

the Department taking the children again. According to Mundy, father gave her the room

number for A. at the hospital, and Mundy called the room to talk with mother. Mundy testified

that when she told mother she knew about the fall down the stairs, mother said, “[Father]

shouldn’t have told you that,” and that “the doctors know enough already.”

       Similarly, Jennifer Mitchell, a case worker for the Department, testified that she made an

unannounced visit to the Farrells’ home on April 1, 2008. Mitchell explained that she went to

the home to investigate a report of a bruise on A.’s face and his visit to the emergency room for

vomiting and weight loss. When Mitchell asked mother about both issues, mother gave Mitchell

the explanation about the coffee table but did not mention the fall down the stairs. Mitchell also

spoke with mother when she was at UVA with A. and asked mother to think about anything else

that happened to A. in the last few months that could have caused head injuries. Mother referred




                                                -8-
to an incident when W. hit A. in the head with the Tonka truck and again referred to the coffee

table incident, but still did not mention the fall down the stairs.

           The parties presented testimony and physical exhibits over the course of a three-day

hearing on the abused or neglected petition as summarized above. At the end of the second day

of the hearing, the Department concluded its evidence, and mother made a motion to strike.

Mother argued in her motion that the Department presented no evidence that E. and W. had

actually been abused or neglected and that the trial court did not have jurisdiction to find E. and

W. at risk of being abused or neglected by reason of A.’s abuse or neglect because no court had

previously adjudicated mother as having abused or neglected A. After argument on mother’s

motion, father made a motion to strike on the same grounds. The trial court denied both motions,

stating:

                  I find, first, that the Court has jurisdiction of these cases under
                  [Code §] 16.1-241. With respect to [A.], keeping in mind the
                  standard here is a prima facie case, and . . . whether the
                  [D]epartment has made a prima facie case that’s shown that he’s
                  been abused or neglected by his parents and also, of course we
                  know that the evidence [is viewed] in the light most favorable to
                  the [D]epartment at a motion to strike stage.

                          But applying that standard, there’s ample evidence to show
                  that [A.] has been abused and neglected by his father and neglected
                  by his mother.

                          Now, as far as the other children are concerned, this is a
                  more difficult analysis. Again, at this stage, I find that the
                  [D]epartment has shown a prima facie case that the other two are at
                  risk because of the abuse and neglect of [A.], and I’m looking at
                  [Code §] 16.1-278.2 . . . when I say that, but also, I find that there’s
                  a prima facie that [sic] they, too, are abused or neglected under the
                  definition contained in [Code §] 16.1-228.

           Following the court’s denial of the motions to strike, mother presented her case-in-chief.

Mother testified that she had another child in June 2009, F., and that she had not obtained

prenatal care during her pregnancy with F. Mother explained that she did not have medical

                                                   -9-
insurance during her pregnancy but was receiving Medicaid for F., and F.’s drug test at birth

came back negative. Mother also asserted that F. was a healthy baby, and the Department had

not initiated any investigation into mother’s and father’s treatment of F. Mother admitted on

more than one occasion during the trial that she and father had gotten into a physical altercation

during an argument in January 2007. Although it was unclear who called the police, officers

came to the house and arrested father. Mother testified that the case against father related to that

incident was eventually dismissed.

       In his case-in-chief, father testified that the January 2007 argument and physical

altercation occurred when he was reviewing bills and confronted mother about approximately

$8,000 that was missing. When asked whether mother had used that money to purchase drugs,

father was unwilling to concede that he believed she had. He testified that he never found out

what happened to the money and that it was still missing. Father did state, however, that he

found mother’s cocaine source and firmly told the person that mother was pregnant (with the

twins W. and A.) and to stop selling drugs to her. When asked about the children’s interactions

with one another, father described A. as “selfish, spoiled,” and needing “to be the center of

attention.” Father also testified that if the children were returned he would have to “work on

A.’s attitude.”

       Following closing arguments, the trial court stated:

                  All right. Well, it’s clear to me that [A.] was abused and
                  neglected. The types of injuries that he sustained are not injuries
                  that you get in routine play, falls around the house. It takes a great
                  violence to inflict that type of injury, bilateral subdural hematoma,
                  bilateral retinal hemorrhages, which were diffuse. These are a
                  result of, again, great violence.

                          Of course, the additional disturbing thing with respect to
                  the subdural hematomas is that they were of various ages, which
                  would indicate that he perhaps suffered the same type of abuse in
                  the past.

                                                  - 10 -
                       No explanation has been offered by the person in whose
               care he was at the time as to how this happened. I have no
               hesitation in finding [father] abused [A.] and inflicted these
               injuries, given the evidence that I have heard.

                       [Father’s] credibility has suffered in this courtroom because
               of the contradictions and inconsistencies in his testimony and the
               contradictions between the testimony of the two parents. I also
               find from his testimony that there is some animus towards [A.];
               he’s selfish; he’s an attention-getter; he’s difficult; he throws
               temper tantrums, and all this stuff, almost as if shifting the blame
               to [A.] for this whole episode.

                       As far as neglect, I think both parents are guilty of neglect.
               It went far too long between doctor visits when [A.] was a
               malnourished child, I mean, 16 pounds at 18 months of age. So
               there’s no question that [A.] is abused and neglected, abused and
               neglected by [father] and neglected by [mother].

                      Now, the more difficult question remains with respect to
               [W.] and [E.], and quite frankly, I need some time to think about
               that.

       The following day, December 1, 2009, the trial court issued a memorandum opinion to

counsel reiterating its finding that father abused and neglected A. and mother neglected A. The

memorandum also stated:

               I find that [E.] and [W.] are in danger of death, disfigurement or
               impairment of bodily or mental functions at the hands of their
               parents by reason of the abuse and neglect of their sibling, [A.]
               This latter form of abuse or neglect is recognized by statute. I refer
               to . . . Code § 16.1-278.2(A). Hence, I find that they are abused
               and/or neglected under the definition set forth in . . . Code
               § 16.1-228(1). In making this determination, I also have in mind
               the history of these parents which includes a previous removal of
               these children from their home.

                         E. The Dispositional Hearing in the Trial Court

       On December 8, 2009, the trial court held a dispositional hearing to determine whether to

grant the Department’s request to terminate the parents’ parental rights to all three children.

       The Department commenced its case with the testimony of Dr. Bernard Lewis, a clinical

psychologist and an expert in parental capacity examinations. Dr. Lewis testified that he had
                                               - 11 -
evaluated both mother and father in 2007 at the Department’s request and then again in 2009 to

update the 2007 evaluations. Specific to mother, Dr. Lewis testified that she suffered from major

depressive disorder, engaged in episodic cannabis abuse, had a history of cocaine abuse in

apparent full remission, and had negative, paranoid, and dependent personality features.

Dr. Lewis testified that during his interviews with mother, she admitted she had lied to him

during the 2007 evaluation about her substance abuse issues. Dr. Lewis also noted that mother

was affected by a dysfunctional marital relationship, financial problems, and difficulty accessing

mental health care. Specific to mother’s parenting abilities, Dr. Lewis noted that she had a

strong and positive attachment to each child with the appropriate degree of concern about their

issues and problems. Additionally, Dr. Lewis testified that mother’s parenting skills were

basically good, indicating her potential to adequately parent the children if she could resolve

certain issues including depression, substance abuse, and her relationship with father. He also

stated that mother had difficulty acknowledging her own responsibility and contribution to the

problems in her life. Dr. Lewis emphasized that if mother were unable to acknowledge that

someone abused A., she would be likely to allow A. to be in a similar situation again and thus,

put at risk. The inability to acknowledge the abuse, Dr. Lewis testified, would also affect

mother’s ability to take appropriate safety measures if A. were back in her custody. Moreover,

mother told Dr. Lewis that A. had anger and temper problems during her visits with him and was

“a violent child.”

       In response to further questioning, Dr. Lewis made several recommendations under the

hypothetical assumption that the trial court would return the children to mother. He stated that

mother would need a prescription medication for depression along with individual counseling for

her relationship problems with father and for substance abuse. Dr. Lewis admitted that some

people with drug abuse problems need to go through counseling four or five times before they

                                               - 12 -
are able to remain completely abstinent and that there was no way to predict whether a second

round of substance abuse counseling would be successful for mother. Dr. Lewis believed that

mother could remedy her depression issues within one year but cautioned that returning the

children to both parents with their current relationship problems was dangerous. Specifically, he

noted that mother’s co-dependency on father made her unable to acknowledge that father’s

presence was harmful to the children and put them at risk.

       Dr. Lewis testified that his evaluation of father led him to conclude that father suffered

from alcohol dependence, a history of polysubstance abuse - most recently marijuana,

narcissistic personality disorder with antisocial traits, and back pain and cognitive impairment.

Dr. Lewis also testified that father thought that he was the victim of a conspiracy in which others

were out to harm him. Dr. Lewis also stated that father’s occupational and financial problems

were affecting him negatively. Specific to father’s parenting abilities, Dr. Lewis found

considerable problems with father’s approach because father lacked understanding about

children’s developmental stages and his own strengths and weaknesses. When reviewing

father’s disciplinary approach, Dr. Lewis noted that father would remove the children from the

situation and yell at them and that father believed “growling” worked well. Dr. Lewis

emphasized that father could not think of anything he could have done differently prior to the

children’s removal except that he would have taken the children to the doctor instead of letting

mother do it and would have told the Department, “No, you’re not taking my kids.”

Additionally, Dr. Lewis noted father’s admission that he needs a “refresher course” on how to

deal with A., whom he described as a very trying child to deal with. According to Dr. Lewis,

father also admitted to him that father has no support network for parenting issues and no one to

ask questions of or talk to.




                                               - 13 -
       When asked for his recommendations regarding father, Dr. Lewis stated that father had

“a great deal of work” to do before he could be considered a minimally adequate parent.

Dr. Lewis also testified that he had serious concerns about father’s parenting ability should father

and mother remain together and get the children back. Dr. Lewis recommended before the

Department or the trial court returned the children to father, that father attend a sobriety

maintenance support program to help him remain free of alcohol and drug usage and engage in

individual counseling. Most relevant to the children, Dr. Lewis recommended that the trial court

require father to attend and complete an individualized parenting skills program that included

specific education about A.’s developmental and emotional issues and provided techniques for

addressing the issues in the home.

       The Department then presented the testimony of one of its representatives, Melanie

Trabosh. Ms. Trabosh testified about the Department’s unsuccessful efforts to find a family

member willing to take custody of the three children. She noted that the children’s current foster

family was willing to adopt them. Ms. Trabosh admitted that the Department’s initial pleading

included a goal of adoption following the most recent removal, not returning the children to the

parents, because the parents refused to discuss A.’s injuries with them. Without any discussions,

Ms. Trabosh testified, she was unable to create a list of services to provide to mother and father.

       Estelle Wilson, the children’s current foster mother, corroborated Ms. Trabosh’s

testimony that Ms. Wilson and her husband were willing to adopt the children. She testified

about the positive behavioral changes in each child and their attitudes toward one another since

they began living with her. Ms. Wilson also mentioned that she and her husband received

training for children with special needs.

       Following Ms. Wilson’s testimony, and at the conclusion of the Department’s case,

mother and father both made motions to strike the Department’s evidence supporting the

                                                - 14 -
petitions for termination. Mother argued two main points in her motion. First, she contended

that termination was not proper because the Department had failed to establish that her neglect of

A. - which she referred to as “missing one doctor’s appointment” - did not create a serious and

substantial threat to the children’s lives or health. Second, mother asserted that the Department

could not sustain its burden on the second component of the statute: that no services could

achieve reunification within a reasonable amount of time in light of Dr. Lewis’s testimony. The

trial court denied mother’s motion to strike, finding that the Department had made a prima facie

case for termination under Code § 16.1-283(B). The trial court also denied father’s motion to

strike based on the same rationale.

       Following the motions to strike, Ms. Trabosh testified again, this time as part of mother’s

case-in-chief. Ms. Trabosh testified that she felt mother’s contact with the Department was

insufficient because an unknown abuser inflicted a severe injury on A. and mother continued to

deny that someone intentionally harmed A. Ms. Trabosh mentioned that mother told her she

looked on the Internet for other potential causes for A.’s brain injuries even after discussing the

medical diagnosis with Dr. Dunn and Dr. Scherrer.

       In support of her case, mother testified that she benefited from the Department’s services

when the Department removed the children the first time and believed she could benefit from

further services. Mother also asserted that she would do whatever the Department asked,

including leaving father and preventing him from having any contact with the children. Mother

again denied any medical neglect of A. other than “missing one doctor’s appointment.” Mother

admitted that she smoked marijuana after the Department removed the children the second time,

in May 2008.

       Father’s mother, Irene Farrell, testified on father’s behalf. She stated that she wanted to

adopt only one of the children, E., because she did not think her health problems and age would

                                               - 15 -
permit her to take care of all three children. Ms. Farrell admitted that father threatened father’s

sister, Ms. Farrell’s daughter, when the sister had custody of the children during the first

removal. Additionally, Ms. Farrell stated that the parents told her that the Department removed

the children because A. had fallen down the steps or hit his head on a coffee table.

          At the close of the evidence, both parties renewed their motions to strike. The trial court

denied both motions, and the parties presented closing arguments. The trial court took the matter

under advisement and eventually entered orders terminating both mother’s and father’s parental

rights to all three children. As to A., the trial court found that A. was abused by father and

neglected by mother. Further, the trial court found by clear and convincing evidence that it was

in A.’s best interest to terminate both parents’ rights to him and that the neglect or abuse A.

suffered presented a serious and substantial threat to his life, health, and development.

Specifically, the trial court concluded:

                 The abuse of [A.] by [father] constitutes “aggravated
                 circumstances” as defined by Code . . . [§] 16.1-283. 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
                 [A.’s] safe return to his parents within a reasonable period of time.
                 In making this determination, the court takes into consideration the
                 efforts made to rehabilitate the parents by public and private social,
                 medical, mental health and other rehabilitative agencies prior to
                 [A.’s] initial placement in foster care. [A.] suffered grievous
                 injuries and the Court rejects the parents’ explanation for same.
                 The Court considers the entire case in the context of this being the
                 second removal of [A.] by the courts. The Court further notes that
                 substance abuse was a significant factor in the first removal, and
                 substance abuse continued to be a problem following the return of
                 the children . . . .

          The trial court also terminated both parents’ rights to E. and W. In separate orders, the

trial court made identical findings that both E. and W. were abused or neglected children whose

best interest was served by terminating both parents’ rights to them. Particularly, the trial court

stated:

                                                 - 16 -
                The Court further finds . . . by clear and convincing evidence, that:

                           *       *       *       *       *       *       *

                         3. The neglect or abuse suffered by [E./W.] presented a
                serious and substantial threat to [her/his] life, health and
                development. 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 [E.’s/W.’s] safe return to [her/his] parents
                within a reasonable period of time. In making this determination,
                the court takes into consideration the efforts made to rehabilitate
                the parents by public and private social, medical, mental health and
                other rehabilitative agencies prior to [E.’s/ W.’s] initial placement
                in foster care. [E.’s/W.’s] brother [A.] suffered grievous injuries,
                and the Court rejects the parents’ explanation for same. I find that
                [E./W.] is in danger of death, disfigurement or impairment of
                bodily or mental functions at the hands of [her/his] parents by
                reason of the abuse and neglect of [her/his] sibling, [A.]. This
                latter form of abuse or neglect is recognized by statute. I refer to
                . . . Code § 16.1-278.2(A). Hence, I find that [she/he] is abused
                and/or neglected under the definition set forth in . . . Code
                § 16.l-228(1). In making this determination, I also have in mind
                the history of these parents which includes a previous removal of
                [E./W.] from [her/his] home. Substance abuse was a significant
                factor in the first removal, and substance abuse continued to be a
                problem following the return of the children . . . .

         For all three children, the trial court further found that the Department investigated all

reasonable options for placement with relatives, and no reasonable alternatives existed.

         Both parents timely noted their appeals. During the pendency of the appeal, father and

mother filed identical motions to vacate the judgments for fraud on the court. The Department

filed a written response, and the trial court concluded that it did not have jurisdiction because the

cases were on appeal to this Court. Neither party noted any subsequent appeals following that

order.

                                           III. ANALYSIS

         When reviewing a termination of a parent’s residual parental rights, we must

acknowledge that “‘[t]he termination of residual parental rights is a grave, drastic and

irreversible action.’” Helen W. v. Fairfax Cnty. Dep’t of Human Dev., 12 Va. App. 877, 883,
                                                 - 17 -
407 S.E.2d 25, 28-29 (1991) (quoting Lowe v. Dep’t of Pub. Welfare, 231 Va. 277, 280, 343

S.E.2d 70, 72 (1986)). While recognizing the seriousness of such a determination, we 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.’”

Fields v. Dinwiddie Cnty. Dep’t of Soc. Servs., 46 Va. App. 1, 7, 614 S.E.2d 656, 659 (2005)

(quoting Farley v. Farley, 9 Va. App. 326, 329, 387 S.E.2d 794, 796 (1990)). Moreover, in a

parental rights termination case, “[t]he 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.’”

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

(quoting Fields, 46 Va. App. at 7, 614 S.E.2d at 659). “In its capacity as factfinder . . . the [trial]

court retains ‘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).

         A. Abuse and neglect of A. as basis for finding E. and W. abused or neglected

       Mother contends that the trial court had insufficient evidence as a matter of law to find

that E. and W. were abused or neglected because it based this determination solely on its finding

that mother neglected A. We disagree.

       Because mother is challenging the abused or neglected determination separately from the

termination decision, we will limit our analysis in this section to the hearings and decisions

ending with the trial court’s December 1, 2009 memorandum opinion.

       After finding that father abused and neglected A. and that mother neglected A., the trial

court found that E. and W. were “in danger of death, disfigurement or impairment of bodily or

mental functions at the hands of their parents.” In reaching this conclusion, the trial court

referred to the abuse and neglect of A., citing Code §§ 16.1-278.2(A), -228(1), and the parents’




                                                 - 18 -
history with the trial court pertaining to the chilren, including a previous removal of the children

from their home.

        Although mother terms this assignment of error a “sufficiency of the evidence

challenge,” we also consider it a challenge to the basis for the trial court’s decision as a matter of

law. Accordingly, we will initially analyze the issue as a question of statutory interpretation,

under a de novo standard. See Syed v. ZH Techs., Inc., 280 Va. 58, 69, 694 S.E.2d 625, 631

(2010). We will then address mother’s sufficiency argument and affirm the trial court’s

determination unless it was plainly wrong or without supporting evidence. See Toms, 46

Va. App. at 266, 616 S.E.2d at 769.

        Code § 16.1-228 defines the terms used in child abuse and neglect cases, and subsection

(1) states:

               When used in this chapter, unless the context otherwise requires:
               “Abused or neglected child” means any child:

                   Whose parents or other person responsible for his care creates
               or inflicts, threatens to create or inflict, or allows to be created or
               inflicted upon such child a physical or mental injury by other than
               accidental means, or creates a substantial risk of death,
               disfigurement or impairment of bodily or mental functions . . . .

        In its December 1, 2009 memorandum opinion, the trial court based its decision that E.

and W. were abused or neglected on the parents’ history, including a previous removal of all

three children, and its finding that the parents abused or neglected A. The trial court also found

that E. and W. were “in danger of death, disfigurement or impairment of bodily or mental

functions at the hands of their parents,” tracking the language of Code § 16.1-228(1). Mother

alleges that the trial court based its decision solely on her and father’s treatment of A., however,




                                                - 19 -
the plain language of the trial court’s memorandum opinion indicates that it had additional bases

for its decision: namely, the history of the parents, including a previous removal. 2

       We have previously upheld a trial court’s abused or neglected determination based on a

parent’s history and treatment of other children. In Jenkins, 12 Va. App. at 1183, 409 S.E.2d at

19, we upheld a trial court’s abused or neglected finding of a mother’s newborn child based on

previous findings of abuse or neglect of her other three children and her history with the court.

We discussed the language of Code 16.1-228(1) and held:

               [T]he statutory definitions of an abused or neglected child do not
               require proof of actual harm or impairment having been
               experienced by the child. The term “substantial risk” speaks in
               futuro . . . .

                       Accordingly, we hold that the Code contemplates
               intervention in such circumstances by allowing for the emergency
               removal of children before placement into an environment where
               “the child would be subjected to an imminent threat to life or
               health to the extent that severe or irreversible injury would be
               likely to result if the child were returned to or left in the custody of
               his parent . . . .” Code § 16.1-251(A)(1).

Jenkins, 12 Va. App. at 1183, 409 S.E.2d at 19. Thus, we find that the trial court did not err, as a

matter of law, in basing its determination that E. and W. were abused or neglected on the

parents’ history before the court and the abuse and neglect of A.

       Moreover, ample facts support the trial court’s determination that E. and W. were in

danger of death, disfigurement or impairment of bodily or mental functions, because an unsafe

environment existed for all three children, even viewing mother in isolation from father. It

cannot be reasonably disputed that mother’s continued drug use created an unsafe environment


       2
         We decline to address whether a trial court could rely solely on a prior adjudication of a
parent’s neglect or abuse of a child’s sibling to find that the child was also abused or neglected.
However, we note that Code § 16.1-278.2(A) provides termination of parental rights as a
potential remedy once a trial court has determined that a parent has previously abused or
neglected another child.

                                                - 20 -
for all three children. Mother’s substance abuse problems led to the first removal of all three

children, and mother admitted that she smoked marijuana after the Department removed the

children the second time.

       In addition, mother’s failure to adequately address A.’s medical needs supported the

conclusion that the mother created an unsafe environment for all three children. Dr. Dunn

testified that she saw A. in November 2007 and expressed concerns to mother about his weight

and malnourishment, yet mother allowed six months to go by before A. saw Dr. Dunn again; and

this visit was brought about by a separate incident threatening A.’s health and safety. On that

date – April 2, 2008 – Dr. Dunn saw A. more malnourished from a milk allergy than she had

ever seen a child and admitted him to the hospital for a week.

       Finally, mother’s inability to acknowledge the physical abuse father inflicted on A.

created a patently unsafe environment for all three children. In this regard, the trial court heard

testimony from Jennifer Mundy and others who indicated that mother was attempting to conceal

information from A.’s doctors when he was admitted to the hospital again in late April. Mother

repeatedly testified that she did not know how A. had sustained his brain injuries, but that she

had not hit or shaken A. and refused to believe that father had caused A.’s injuries. Yet, mother

admitted that she and father had gotten into a physical altercation that required police

involvement and led to charges against father.

       This Court’s decision in Jenkins not only supports the trial court’s legal analysis, but the

salient facts also support the trial court’s conclusion on this issue. As in Jenkins, the trial court

in this case could have reasonably found that mother had allowed an environment to exist “that

presented a substantial risk of impairment to the bodily or mental functions of [E. and W.] if the

Department . . . allowed the child[ren] to be subjected to those conditions.” 12 Va. App. at 1183,

409 S.E.2d at 19. When Code §§ 16.1-228(1) and -251(A)(1) are considered together, as was the

                                                 - 21 -
case in Jenkins, these sections contemplate court intervention upon a finding of abuse or neglect

of other children, provided that the environment in a parent’s home still presents the requisite

threat to a child’s welfare. Id. Moreover, we note that the circumstances of the instant case are

arguably more compelling than the situation in Jenkins, in that the trial court in Jenkins had not

previously removed the child at issue from the home. Significantly here, the trial court

specifically noted that mother’s children, including E. and W., were removed once before. Thus,

we hold that the evidence was sufficient to support the trial court’s determination that E. and W.

were abused or neglected.

       Because the plain language of Code § 16.1-228(1), the trial court’s memorandum

opinion, our decision in Jenkins, and the evidence in the record support the trial court’s decision,

we find no merit in mother’s assignment of error on this issue.

                    B. Evidence of neglect and abuse that E. and W. suffered

       Mother asserts that the plain language of Code § 16.1-283(B)(1) requires evidence that a

child actually suffered neglect or abuse before a trial court may terminate residual parental rights

and that the record contains no evidence that mother actually neglected or abused E. or W.

       We will view the evidence in the light most favorable to the Department because it was

the prevailing party below. Jenkins, 12 Va. App. at 1180, 409 S.E.2d at 17. Additionally, we

will not reverse the trial court’s conclusion on this issue unless it is plainly wrong or without

supporting evidence. Toms, 46 Va. App. at 266, 616 S.E.2d at 769. In contrast to mother’s first

assignment of error, this second assignment of error challenges the trial court’s termination

decision, not the abused or neglected determination.

       At the Department’s request, the trial court evaluated the cases for termination under

Code § 16.1-283(B), which required the trial court to make the following findings:

               [B]ased upon clear and convincing evidence, that . . . [termination]
               is in the best interests of the child and that:
                                                 - 22 -
                   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. . . .

       Consistent with the United States Supreme Court’s decision in Santosky v. Kramer, 455

U.S. 745, 747-48 (1982), the Fourteenth Amendment’s Due Process Clause requires the

Department to prove each of its allegations by clear and convincing evidence before the court

will terminate mother’s residual parental rights to her children.

       The trial court’s orders for both E. and W. included these statutory findings by clear and

convincing evidence, and its finding that E. and W. were neglected or abused was taken nearly

verbatim from Code § 16.1-228(1). 3 Specific to mother’s argument, the trial court found “by

clear and convincing evidence” that “[t]he neglect or abuse suffered by [E. and W.] presented a

serious and substantial threat to [her/his] life, health and development.” (Emphasis added).
       3
          In the final termination orders for E. and W., the trial court summarized and reiterated
the findings it made by a preponderance of the evidence regarding whether E. and W. were
abused or neglected. Applying the preponderance of the evidence standard to the abused or
neglected determination in and of itself is appropriate under Code § 16.1-252(G), and after that
determination, Code § 16.1-278.2(A)(7) allows a trial court to proceed to terminate parental
rights as a potential remedy. Once a trial court proceeds to the termination decision, however,
pursuant to Santosky, Code § 16.1-283(B) mandates that the trial court require the Department to
prove each element by clear and convincing evidence. In this case, the trial court applied the
appropriate burden and stated in its final termination orders for E. and W.:

               The Court further finds . . . by clear and convincing evidence, that:

                          *       *       *      *       *          *    *

               I find that [E. and W. are] in danger of death, disfigurement or
               impairment of bodily or mental functions at the hands of her
               parents by reason of the abuse and neglect of her [/his] sibling,
               [A.]. This latter form of abuse or neglect is recognized by statute.
               I refer to Virginia Code § 16.1-278.2(A). Hence, I find that she
               [/he] is abused and/or neglected under the definition set forth in
               Virginia Code § 16.l-228(1).

                                               - 23 -
Mother argues that the trial court could not base this finding on the facts in the record because

the record contained no evidence that father or mother actually neglected or abused E. or W. We

disagree. The trial court cited mother’s and father’s substance abuse and the history of the prior

removal in its final order. This evidence, in addition to other evidence in the record, supports the

conclusion that mother neglected E. and W. For example, mother admitted that she had no

prenatal care for any of her children, tested positive for cannabinoid when E. was born, and

tested positive for cocaine and THC when W. was born. Mother did not dispute that W. was

born with cocaine in his system. Moreover, mother admitted that she smoked marijuana in May

2008, after the Department removed the children the second time. She used illegal drugs again

despite the Department’s provision of substance abuse counseling during the first removal.

       Moreover, Dr. Lewis testified extensively about mother’s history with the Department

dating back to the first removal in 2007, including mother’s admission that she had lied to

Dr. Lewis about her substance abuse during the 2007 evaluation. Dr. Lewis noted that mother

suffered from episodic cannabis abuse with a history of cocaine abuse, along with dependent

personality features. He also stated that mother had a potential to adequately parent her children

provided that she could resolve her issues with depression, substance abuse, and her relationship

with father.

       Most relevant to E. and W., however, Dr. Lewis further testified that mother had

difficulty acknowledging her contribution to the problems in her life, specifically related to her

relationship with father, because she refused to acknowledge that father’s presence was harmful

to the children and placed them at risk. Dr. Lewis further testified that returning the children to

the home with both parents living together would be dangerous. He asserted that mother would

need to demonstrate that she understood leaving the children with father could put them at risk

before the children could safely return to her care. Dr. Lewis referred to this issue between

                                               - 24 -
mother and father as “co-dependency” and testified extensively about the treatment that mother

would need to overcome her enabling behavior.

       Consistent with Dr. Lewis’s diagnosis, mother repeatedly stated that she did not believe

that anyone had intentionally inflicted A.’s injuries upon him and testified that she wanted the

doctors to consider research she obtained from the Internet about other possible causes for the

injuries. When specifically asked about Dr. Scherrer’s opinion that A.’s injuries were consistent

with non-accidental trauma, mother stated that she did not believe Dr. Scherrer’s conclusion.

       The trial court based its finding that E. and W. were actually neglected on mother’s

continued substance abuse and her history with the Department and the court. We cannot say

that this conclusion was plainly wrong. See Butler v. Culpeper Cnty. Dep’t of Soc. Servs., 48

Va. App. 537, 550, 633 S.E.2d 196, 202 (2006) (relying on a mother’s continued drug use to

support terminating her parental rights under Code § 16.1-283(B)). Because evidence in the

record amply supports the trial court’s decision, and it is not plainly wrong, we affirm the trial

court’s finding that E. and W. suffered from abuse or neglect that presented a serious and

substantial threat to their lives, health and development.

                  C. Sufficient evidence that mother could not remedy offending
                              conditions in reasonable period of time

       Mother also challenges the trial court’s finding on the second statutory requirement under

Code § 16.1-283(B): that it is not reasonably likely that she could remedy the conditions

resulting in the removal of the children in a reasonable period of time. Mother argues that the

evidence is insufficient to support this finding because Dr. Lewis enumerated several services

that the Department could provide to her to effectuate the children’s safe return to her care. To

the contrary, Dr. Lewis’s testimony, evidence of mother’s pattern of lying, and the evidence

about the children’s prior removal, supported the trial court’s finding on this issue.



                                               - 25 -
       We have repeatedly held that Code § 16.1-283(B) “speaks prospectively,” as to the parent

or parents’ ability to remedy the conditions that led to a child’s placement in foster care.

Newport News Dep’t of Soc. Servs. v. Winslow, 40 Va. App. 556, 562-63, 580 S.E.2d 463, 466

(2003). And, in termination cases, the trial court retains “‘broad discretion in making the

decisions necessary to guard and to foster a child’s best interests.’” Toms, 46 Va. App. at 266,

616 S.E.2d at 769 (quoting Farley, 9 Va. App. at 328, 387 S.E.2d at 795). “The phrase, ‘within a

reasonable time’ is not definable by any prescribed rule. Its meaning depends upon the context

and the attendant circumstances; not upon mere opinion or expectation.” Kaywood v. Halifax

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

Ass’n of Ins. Agents v. Commonwealth, 187 Va. 574, 579, 47 S.E.2d 401, 404 (1948)).

       Dr. Lewis testified to a laundry list of services that mother could benefit from. However,

at no point did he state that mother could take advantage of services for each of her problems and

remedy all of them within a reasonable period of time. A.’s and W.’s drug exposure at birth led

to the first removal of all three of the children. The trial court found that mother continued to

abuse illegal substances despite the services she received during the first removal in 2007 and

2008. Although the trial court did not make the express finding that the evidence supported

Code § 16.1-283(B)(2)(b)’s requirements, 4 we cannot ignore the legislature’s recognition of the


       4
           Code § 16.1-283(B)(2)(b) states:

                       Proof of any of the following shall constitute prima facie
                evidence of the conditions set forth in subdivision B 2 hereof:

                           *      *       *       *       *      *       *

                        The parent or parents have habitually abused or are
                addicted to intoxicating liquors, narcotics or other dangerous drugs
                to the extent that proper parental ability has been seriously
                impaired and the parent, without good cause, has not responded to
                or followed through with recommended and available treatment

                                                - 26 -
dangers that drug addiction poses to children, as expressed in this statute. Moreover, Dr. Lewis

testified that some people with drug abuse problems need to go through counseling four or five

times before being able to remain abstinent and that “[t]here’s no realistic way of predicting

whether a second program would have a different outcome than the first.” We have noted that

“[i]t is clearly not in the best interests of a child to spend a lengthy period of time waiting to find

out when, or even if, a parent will be capable of resuming his responsibilities.” Kaywood, 10

Va. App. at 540, 394 S.E.2d at 495.

       Significantly, the evidence at trial demonstrated mother’s pattern of lying to doctors and

Department personnel to the children’s detriment. Jennifer Mundy testified that when she

attempted to persuade mother to tell the doctors about A.’s fall down the stairs, mother stated

that father should not have told Mundy about the fall and that the doctors knew enough already.

Mother specifically admitted that she did not tell Dr. Scherrer about A.’s fall down the stairs.

Jennifer Mitchell also testified that she visited the home after this alleged fall down the stairs but

that mother failed to mention it when discussing A.’s medical problems. In terminating mother’s

rights to all three children, and consistent with the analytical framework of Kaywood, the trial

court made a prospective judgment about her ability to remedy the conditions leading to the

children’s removal. Because evidence in the record supported the trial court’s determination,

and it was not plainly wrong, we affirm the trial court’s judgment on this issue.

     D. No error in not ordering additional services or time to remedy offending conditions

       In her final assignment of error, mother argues that the trial court erred in not giving her

an opportunity to remedy the conditions leading to removal before terminating her parental rights




               which could have improved the capacity for adequate parental
               functioning . . . .

                                                 - 27 -
to the three children. On brief, mother also asserts that the trial court erred in not ordering the

Department to offer her additional services before making the termination decision.

       Because these two arguments raise purely legal questions, we will analyze them under a

de novo standard. See Mission Residential, LLC v. Triple Net Props., LLC, 275 Va. 157, 161,

654 S.E.2d 888, 890 (2008).

       Code § 16.1-283(B)(2) requires a trial court to “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” when

determining whether the parent can remedy the offending conditions within a reasonable period

of time. As we held in Toms, “[n]othing in Code § 16.1-283 or the larger statutory scheme

requires that such services be provided in all cases as a prerequisite to termination under

subsection B.” 46 Va. App. at 268, 616 S.E.2d at 771.

       The trial court explicitly stated in each of its final termination orders, “In making this

determination, the court takes into consideration the efforts made to rehabilitate the parents by

public and private social, medical mental health and other rehabilitative agencies prior to [E., W.,

and A.’s] initial placement in foster care.” It therefore made the requisite finding under Code

§ 16.1-283(B)(2). In declining to order more services or more time for mother to remedy the

conditions, the trial court had ample evidence in the record to rely on, including Ms. Trabosh’s

testimony as to why the Department did not create a plan for services. Because we see no reason

to depart from the plain language of Code § 16.1-283 nor our decision in Toms, we find no error

in the trial court’s decision not to order additional services for mother prior to termination.

       Mother also contends that the trial court should have given her another opportunity to

remedy the offending conditions before terminating her rights. But we have stated and continue

to recognize that “sometimes, the most reliable way to gauge a person’s future actions is to

                                                - 28 -
examine those of his past . . . . [O]ne permissible ‘measure of a parent’s future potential is

undoubtedly revealed in the parent’s past behavior with the child[ren].’” Toms, 46 Va. App. at

267-68, 616 S.E.2d at 770 (quoting Petry v. Petry, 41 Va. App. 782, 793, 589 S.E.2d 458, 463

(2003)). The trial court endorsed the Department’s removal of the children for the first time in

2007 while at the same time giving mother and father the opportunity to remedy their substance

abuse problems. Despite completing the foster care plan’s requirements, mother and father both

used marijuana again, and father did not abstain from alcohol. In addition, the trial court found

that father inflicted grievous injuries on A. that could have resulted in his death, specifically

noting in A.’s final termination order, “The abuse of A. by [father] constitutes ‘aggravated

circumstances’ 5 as defined by . . . Code [§] 16.1-283.” Mother not only repeated injurious

behavior that she was supposed to remedy after the first removal, but put the children in peril by

deciding to leave the children unsupervised with the father. Despite the medical evidence and

the trial court’s explicit determination that father abused A. in its December 1, 2009

memorandum opinion, mother was still unable to recognize the danger that father posed to the

children during the dispositional hearing. Consequently, we find no error in the trial court’s

decision to terminate mother’s parental rights without giving her yet another opportunity to

remedy those conditions that led to abuse or neglect of her children. Therefore, we find no error

in the trial court’s decision based on either of mother’s arguments under this assignment of error.



       5
           Code § 16.1-283 defines “aggravated circumstances” as:

                torture, chronic or severe abuse, or chronic or severe sexual abuse,
                if the victim of such conduct was a child of the parent or a child
                with whom the parent resided at the time such conduct occurred,
                including the failure to protect such a child from such conduct,
                which conduct or failure to protect: (i) evinces a wanton or
                depraved indifference to human life, or (ii) has resulted in the
                death of such a child or in serious bodily injury to such a child.

                                                - 29 -
                                       IV. CONCLUSION

       For the foregoing reasons, we hold that the trial court did not err in any of the four

aspects mother raises. Therefore, we affirm the judgment of the trial court.

                                                                                          Affirmed.




                                               - 30 -
Petty, J., concurring.

        I concur in all but section III.A of the majority’s opinion. I decline to join section III.A

because I believe it is unnecessary to analyze the trial court’s December 1, 2009 findings in this

case.

        As we observed in father’s parallel case, “consistent with the United States Supreme

Court’s decision in Santosky v. Kramer, 455 U.S. 745, 747-48 (1982), the Department needed to

prove each of its allegations supporting termination of parental rights by clear and convincing

evidence.” Farrell v. Warren Cnty. Dep’t of Soc. Servs., __ Va. App. __, __, __ S.E.2d __, __

(Jan. 10, 2012). Accordingly, in father’s case, we found that the trial court’s findings in its

termination decision—as distinct from its prior abused or neglected determination on December

1, 2009—“did indeed indicate that it held the Department to that higher standard; and the

Department satisfied that burden.” Id. As we further noted, the trial court expressly stated in its

final termination orders for E. and W. that it found by clear and convincing evidence that E. and

W. were “in danger of death, disfigurement or impairment of bodily or mental functions at the

hands of [their] parents by reason of the abuse and neglect of [their] sibling, [A.].” See id. Since

this satisfies the definition of an “abused or neglected child” under Code § 16.1-228, this finding

is the finding that properly supports the trial court’s ultimate decision to terminate mother’s

residual parental rights. Any prior finding under a lesser burden of proof is consequently

irrelevant to an evaluation of the trial court’s termination decision. Thus, because mother’s first

assignment of error concerns such a prior, legally irrelevant finding of the trial court, I would not

address it.




                                                - 31 -
