                   COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


KAREN A. GALLUPE
                                               MEMORANDUM OPINION *
v.   Record No. 0515-98-3                          PER CURIAM
                                                DECEMBER 15, 1998
ROANOKE CITY DEPARTMENT
 OF SOCIAL SERVICES


           FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
                    Richard C. Pattisall, Judge
           (Onzlee Ware, on brief), for appellant.

           (L. Brad Braford, on brief), for appellee.



     On appeal from the judgment of the trial court terminating

her parental rights to her three minor children, Karen A. Gallupe

contends that the evidence failed to support that termination.

Upon reviewing the record and briefs of the parties, we affirm

the judgment of the trial court.

     "When addressing matters concerning a child, including the

termination of a parent's residual parental rights, the paramount

consideration of a trial court is the child's best interests."
Logan v. Fairfax County Dep't of Human Development, 13 Va. App.

123, 128, 409 S.E.2d 460, 463 (1991).
          "In matters of a child's welfare, trial
          courts are vested with broad discretion in
          making the decisions necessary to guard and
          to foster a child's best interests." The
          trial court's judgment, "when based on
          evidence heard ore tenus, will not be
          disturbed on appeal unless plainly wrong or
     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
          without evidence to support it."


Id. (citations omitted).     "Code § 16.1-283 embodies 'the

statutory scheme for the . . . termination of residual parental

rights in this Commonwealth' [which] . . . 'provides detailed

procedures designed to protect the rights of the parents and

their child,' balancing their interests while seeking to preserve

the family."   Lecky v. Reed, 20 Va. App. 306, 311, 456 S.E.2d

538, 540 (1995) (citations omitted).
     Code § 16.1-283(B) provides that the residual parental

rights of a parent of a child found by a court to be neglected or

abused may be terminated if the court finds that it is in the

child's best interests, that the neglect or abuse presents a

serious and substantial threat to the child's life, health or

development, and that it is not reasonably likely that the

conditions resulting in the neglect or abuse can be substantially

corrected or eliminated to allow the child's safe return within a

reasonable period of time.     See Code § 16.1-283(B)(1) and (2).

     Code § 16.1-283(C) provides that a parent's residual

parental rights to a child placed in foster care may be

terminated if the trial court finds it is in the best interests

of the child and, in pertinent part,
          [t]he parent or parents, without good cause,
          have been unwilling or unable within a
          reasonable period not to exceed twelve months
          to remedy substantially the conditions which
          led to the child's foster care placement,
          notwithstanding the reasonable and
          appropriate efforts of social, medical,




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             mental health or other rehabilitative
             agencies to such end.


Code § 16.1-283(C)(2).

        Gallupe's two older children were taken into emergency,

short-term foster care when an investigation disclosed that the

apartment in which they lived lacked heat and that the extension

cords used to supply electricity were a fire hazard.    Once in

foster care, the children disclosed that they had been sexually

abused by their father.    Further investigation resulted in a

determination of "founded" abuse.    Visitation with the father was

discontinued in mid-1996.
        Gallupe continued bi-weekly visits with the children, and

completed the parenting classes required under the foster care

service plan.    However, she did not believe the children's

allegations of sexual abuse.    While she met with Dr. Van Patten

after he had tested the father, she stated that she did not

believe Dr. Van Patten's findings were valid or that his report

was truthful.    She asked no questions concerning risks to which

the children would be exposed by further contact with their

father.    During visitation, she blamed the children for

separating the family, and urged them to recant what they had

said.    Despite evidence to the contrary, she refused to

acknowledge that the children were at risk.

        The trial court found that
             1) the evidence was overwhelming that [the
             two older children] were sexually abused and
             that their father was the perpetrator of this
             abuse; 2) none of the children are safe in



                                 - 3 -
            the presence of their father; 3) the
            children's mother does not believe that the
            children's father sexually abused the
            children; 4) therefore the children's mother
            will not adequately protect the children from
            their father; 5) the parents, without good
            cause, have not responded to or followed
            through with the appropriate, available and
            reasonable rehabilitative services on the
            part of social, medical, mental health or
            other rehabilitative agencies designed to
            reduce, eliminate or prevent the neglect or
            abuse of the children; 6) the parents,
            without good cause shown, have been unwilling
            or unable within a reasonable period of time
            to remedy substantially the conditions which
            led to the children's foster care placements,
            notwithstanding the reasonable and
            appropriate efforts of social, medical,
            mental health or other rehabilitative
            agencies to such end . . . .

     Witnesses for the Department of Social Services testified

that both older children had suffered sexual abuse at the hands

of their father and, as a result, had suffered serious emotional

damage.   Despite the evidence, Gallupe refused to acknowledge the

father's guilt and urged the children to repudiate their reports

of abuse.   She sided with the father against the children,

subordinating their welfare to her own interests.   She became a

party to the abuse.   She failed to safeguard her children.   This

nonfeasance on Gallupe's part was as threatening to the health

and well-being of the children as was the father's malfeasance.

Thus, credible evidence supports the trial court's finding that

Gallupe was unwilling or unable to remedy substantially the

conditions that had led to the children's foster care placement.

Likewise, credible evidence supports the trial court's finding




                                - 4 -
that Gallupe had failed to respond to the appropriate services

designed to reduce, eliminate or prevent the abuse.

     Gallupe contends that she was forced to choose between her

children and her husband.    However, that choice was not imposed

on her by the trial court.   Her children were at risk due to

behavior to which she turned a blind eye.   She failed to support

her young children and to help them recover from their trauma.

She attempted to silence them and to make them bear the burden of

the family's separation.    In the absence of force, threat or

intimidation, Gallupe's failure to protect her children from

their father's known abuse constituted neglect or abandonment.
     The judgment of the circuit court is affirmed.

                                                         Affirmed.




                                - 5 -
Benton, J., dissenting.

     The record indicates that when the male child was three

years of age he made a complaint of sexual abuse against the

father.    The record does not indicate when the female child first

made her complaint; however, she is one year younger than her

brother.   Both children were removed from their home before the

male child made his complaint.    No criminal proceeding was ever

instituted against the father because "the detectives at the

Youth Bureau didn't feel like [the three-year-old child's]

statement would stand up in Court, given his age."
     The record clearly demonstrates that the mother did not

sexually abuse her children and took all the steps requested of

her by the Department of Social Services.    The trial judge's

decision wrongfully attributed to the mother responsibility for

the acts the father is alleged to have committed.    "[T]he

termination of the legal relationship between a parent and a

child is a grave proceeding."     Weaver v. Roanoke Dept. of Human
Resources, 220 Va. 921, 926, 265 S.E.2d 692, 695 (1980).      Such a

drastic and irreversible action cannot be based upon a decision

that deems the mother a surrogate for the father.     See id. at

929, 265 S.E.2d at 697.   The evidence was insufficient under Code

§ 16.2-283 to prove that the mother's independent actions

warranted termination of her parental rights.

     I respectfully dissent.




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