                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Chafin and Senior Judge Annunziata
UNPUBLISHED



              DANIEL HENSLEY
                                                                                   MEMORANDUM OPINION*
              v.     Record No. 2351-13-3                                              PER CURIAM
                                                                                      MARCH 18, 2014
              HARRISONBURG ROCKINGHAM
               SOCIAL SERVICES DISTRICT


                                 FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
                                                James V. Lane, Judge

                               (Avery B. Cousins III; Cousins Law Offices, on brief), for appellant.

                               (Rachel Errett Figura, Assistant County Attorney; Michael D.
                               Beckler, Guardian ad litem for the minor children, on brief), for
                               appellee.


                     Daniel Hensley (father) appeals an order terminating his parental rights to his children, S.H.

              and M.H. Father argues the trial court erred by finding there was sufficient evidence to terminate

              his parental rights pursuant to Code § 16.1-283(C)(2). He also contends the trial court erred in not

              ordering the Harrisonburg Rockingham Social Services District (HRSSD) to explore relative

              placement with his sister. Upon reviewing the record and briefs of the parties, we conclude the trial

              court did not err. Accordingly, we summarily affirm the decision of the trial court. See Rule 5A:27.

                     We view the evidence in the light most favorable to the prevailing party below and grant to

              it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax Cnty. Dep’t of Human

              Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991).

                     In his opening brief, father concedes there were “adequate grounds” for the removal of

              the children on March 14, 2012. He also concedes reasonable services were offered by HRSSD

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
to remedy the conditions that led to the removal. However, father contends HRSSD did not offer

“appropriate services” to him, but rather focused on providing services to the children’s mother.

       While it is true that HRSSD offered numerous services to the mother who had issues with

substance abuse, mental stability, and child care skills, the evidence shows services were also

offered to father. Leann Tofsrud, a social worker, testified she began working with the family in

2010. In July 2010, M.H. was adjudicated abused or neglected and S.M. was adjudicated at

risk.1 Mother was charged with felony child abuse and neglect. Tofsrud testified HRSSD

worked with both parents and “put a lot of support services in there for them.” Tofsrud

specifically stated that due to concerns that mother would be sentenced to jail, “it was important

to make sure that [father] could provide the care needed” for both children so he could be their

caretaker if mother was incarcerated. HRSSD was also concerned that mother’s continuing

substance abuse issues and “serious mental illness” would result in father becoming the primary

caretaker of the children.

       Tofsrud testified HRSSD provided five hours of in-home services per week to teach

father the parenting skills that he was lacking. Tofsrud stated five hours per week was the

maximum amount of time they could provide for in-home services. Tofsrud stated HRSSD

provided a service to assess the children, Healthy Families worked with the parents and the

children, and the parents were provided parenting classes. She estimated she maintained weekly

contact with the family.

       Tofsrud also testified there were concerns about father not taking appropriate care of the

children’s hygiene--for example, their clothes were often dirty and he refused to cut their nails.

The parents did not follow through with eye appointments for S.M. In addition, Tofsrud

questioned whether father was meeting the needs of S.M. who was “very, very aggressive” with


       1
           M.H. was born on March 16, 2010, and S.M. was born on February 13, 2009.
                                              -2-
her younger sibling and had difficulty communicating. Tofsrud described an incident that took

place in the family home where she observed father “struggling to create a boundary” for S.M.

when she became violent toward her younger brother. At that time, father was the primary

caretaker of the children.

        Tofsrud also stated the family received financial assistance for daycare and father often

left the children in daycare until after dinner so they would have eaten a meal before he retrieved

them. On some of the occasions when the children were left in daycare past their scheduled

pick-up time, father was seen walking on the streets of Harrisonburg.

        Tofsrud also testified that at one point HRSSD asked mother to leave the home. Tofsrud

met with father’s employer to work out a plan to enable him to care for the children. She then

learned that father’s supervisor sometimes retrieved the children from daycare and fed and

bathed them. This was a concern because HRSSD had worked with father for many months, yet

he had not made progress in meeting the needs of his children. Rather, he continued to rely on

others to care for his children.

        Tofsrud testified that after HRSSD had been working with the family for over one year,

father had not made any progress with any of the services HRSSD had provided. He remained

dependent on others to take care of the children. He appeared to be overwhelmed and struggled

with being a single parent. Mother returned to the home in September 2011, however, she

continued to suffer with substance abuse issues. After HRSSD went to the home and found

mother alone with the children acting “agitated” and “sporadic” and the house in disarray, the

children were removed from the home and placed into foster care in March 2012. Tofsrud

testified father had not reported to HRSSD that mother was continuing to abuse substances.

        Nicole Zepp, the social services worker for the children, testified she pursued relative

placement for the children after their removal from the home. However, none of the relatives

                                                -3-
identified by the parents responded to the relative placement letter. While the children were in

foster care, father was referred to alcohol abuse counseling and parenting education classes. He

had supervised visits with the children. A clinical psychologist performed a psychological

evaluation of father. Father continued to maintain an apartment with financial assistance, but

Zepp testified he was typically behind in his rent payments. He was also not current on his child

support payments while the children were in foster care.

       Zepp also testified father did not maintain the home in an appropriate condition for the

children. She stated it was dirty, smelled of cigarette smoke, and was full of various items.

Father continued to work at a fast-food restaurant, and he donated plasma as a source of income.

Zepp stated father worked less than thirty hours per week. Father and mother appeared to have

an unstable relationship. However, Zepp stated they indicated they wanted to parent the children

together.

       Zepp met with father in late August 2013, and he indicated he knew he could not take

care of the children at that time, but he wanted to work toward getting them back. However,

Zepp also stated father did not accept any responsibility for his actions that contributed to the

children’s placement in foster care and he indicated he did not understand why they were there.

       Zepp testified M.H. is in a potential adoptive home and is doing very well in the home.

S.M. is in a therapeutic foster home where her needs are met. This home is also a potential

adoptive home where the foster care mother has “a unique way of parenting” and is a calming

influence on S.M.

       From June 2012 to January 2013, Rebecca Simmons handled parenting education with

father and supervised his visits with the children. She testified father had previously participated

in parenting classes provided by another group before Simmons became involved in the case.

She stated that at the supervised visits father displayed an inability to place the children’s needs

                                                -4-
above his own. Father had a “very difficult” time interacting and communicating with the

children, and he was unwilling to take suggestions from Simmons. Simmons spoke with father

“at length about his interactions,” and she did not see any changes in his presentation toward the

children. M.H. remained detached during the visitations, and S.M. often had tantrums. During

the visits, father would also engage in lengthy phone calls with mother during which they

frequently argued. When mother was also at the visitation, the parents often argued and father

would undermine mother with degrading comments. Father failed to recognize the negative

impact their relationship had on the children. Father was defensive when Simmons discussed his

parenting skills with him, and his progress was “minimal.”

        Rebecca Skaflen took over father’s case from Simmons in January 2013. She supervised

visitations with both parents, and she also stated there was conflict and distress during the visits

with the children. The children displayed increased disruptive behaviors. Skaflen also stated

that when presented with an example of a negative interaction he had with a child, father would

indicate he recognized the negative behavior and would “work on” changing it, but nothing ever

changed. She testified father is “challenged” with setting limits, giving direction, and actually

parenting versus babysitting. The children did not respect or trust father.

        Skaflen testified father needed to improve his financial situation as he was working only

part-time at the fast-food restaurant. Father did complete his GED. As of the spring of 2013,

father’s apartment remained unsuitable for raising children due to the lack of cleanliness.

        A licensed professional counselor testified S.M. is in her third foster care placement. She

entered foster care exhibiting agitated and irritable emotional behavior and was diagnosed with

PTSD. The counselor has seen progress with S.M.’s emotional issues and her developmental

skills while in foster care.




                                                -5-
        Father testified he and the children’s mother are no longer in a relationship. He testified

he was late picking up the children from daycare only when he lacked transportation. Father

does not have a driver’s license and has never had one. Father stated he was no longer

consuming alcohol or smoking cigarettes. He has a temporary job holding signs for a furniture

store that is going out of business. He continues to donate plasma as a source of income. Father

attends substance abuse counseling, and he testified he has changed since the children went into

foster care. He stated he has cooperated with the services provided by HRSSD and he will

cooperate with services needed for S.M. should he regain custody.

        Father’s sister, Sharon Hensley, testified at the hearing that although she had never

inquired of HRSSD to be considered for a relative placement, she would be willing to care for

the children if father could not do so. She also stated she first learned about the termination of

father’s parental rights two weeks before the hearing in circuit court. Father had reported he was

estranged from his sister but Hensley testified she was in contact with father on approximately a

monthly basis. Hensley also testified she had seen father’s children on their birthdays and on

several Christmas holidays. Hensley stated she had last seen the children in March of 2012 and

the children had never been to her home.

        The guardian ad litem reported that M.H. is “getting along famously with his foster

parents” and is very happy. He stated that S.M.’s foster parent “has turned her around in a

spectacular way.” The guardian ad litem opined that returning the children to father would cause

them to regress and it is in the best interests of the children to terminate father’s parental rights.

        In its ruling, the trial court stated it had no doubt that father loves his children, but the

issue was his inability to “step up” and start correcting the problems immediately. The trial court

expressed concern that the children were entitled to stability and father had done “too little too

late.” The court noted the children were in a good place and seemed to be moving forward. Yet

                                                  -6-
father had “disregarded what was in front of him.” The trial court found it was in the best

interests of the children to terminate father’s parental rights. In addition, the trial court noted that

father’s sister’s interest in gaining custody of the children was untimely.

        ‘“In matters of child welfare, trial courts are vested with broad discretion in making the

decisions necessary to guard and to foster a child’s best interests.’” Id. (quoting Farley v. Farley,

9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)). The trial court’s judgment, “when based on

evidence heard ore tenus, will not be disturbed on appeal unless plainly wrong or without

evidence to support it.” Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988).

        A court may terminate parental rights if it finds, based upon clear and convincing

evidence, it is in the best interests of the child and that:

                The parent or parents, without good cause, have been unwilling or
                unable within a reasonable period of time not to exceed twelve
                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, notwithstanding the
                reasonable and appropriate efforts of social, medical, mental health
                or other rehabilitative agencies to such end.

Code § 16.1-283(C)(2).

                [S]ubsection C termination decisions hinge not so much on the
                magnitude of the problem that created the original danger to the
                child, but on the demonstrated failure of the parent to make
                reasonable changes. Considerably more “retrospective in nature,”
                subsection C requires the court to determine whether the parent has
                been unwilling or unable to remedy the problems during the period
                in which he has been offered rehabilitation services.

Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 271, 616 S.E.2d 765, 772 (2005)

(quoting City of Newport News Dep’t of Soc. Servs. v. Winslow, 40 Va. App. 556, 562-63, 580

S.E.2d 463, 466 (2003)).

        Although father focuses much of his argument on his financial circumstances, improving

the family’s finances was not the only issue father faced in re-gaining custody of his children.


                                                  -7-
Evidence was presented that father lacked appropriate parenting skills and, despite the efforts of

HRSSD in working with him in this area, father exhibited little change in his ability to be a

caretaker for the children. When he was the primary caretaker, the home was kept in disarray,

the children and their clothes were dirty, father depended on others to help him with the children,

he left the children in daycare until after dinner time, and he had difficulty meeting the emotional

needs of the children. Father appeared to be overwhelmed with caring for two children. He did

not communicate well with the children, and the children did not respect or trust father.

       Furthermore, the social worker testified father did not demonstrate that he had corrected

any of his parenting deficiencies while the children were in foster care. Even during supervised

visitation, he continued to prioritize his needs over the needs of the children and he often argued

on the phone at length with mother while ignoring the children. Father failed to recognize that

his unstable relationship with the children’s mother had a negative impact on the children. In

addition, he was unable to control S.M. who suffered from emotional issues. Thus, the evidence

showed father’s inability to parent the children contributed to their removal and his failure to

correct these deficiencies contributed to the trial court’s decision to terminate his parental rights.

       As stated above, HRSSD provided father with multiple services to assist him in gaining

the skills necessary to parent the children. Father also received financial assistance with daycare

and his rent on the apartment. Skaflen testified she discussed with father improving his financial

condition and he stated it was important for him to maintain job stability at the fast-food

restaurant, although he was working there less than forty hours per week. She testified father

“did not appear to be interested in looking for other work.”

       Importantly, both children are more stable and are improving in their foster homes, which

are both potential adoption homes. The guardian ad litem for the children opined that returning

them to father’s custody would cause them to regress.

                                                 -8-
        Thus, father did not demonstrate his ability “within a reasonable period of time . . . to

remedy substantially the conditions which led to or required continuation of the child[ren]’s foster

placement, notwithstanding the reasonable and appropriate efforts of [the Department].” Code

§ 16.1-283(C)(2). Furthermore, “[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 [or her]

responsibilities.” Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d

492, 495 (1990). The record contains sufficient evidence that it was in the best interests of the

children to terminate the residual parental rights of father.

                         Virginia law recognizes the “maxim that, sometimes, the
                 most reliable way to gauge a person’s future actions is to examine
                 those of his past.” “As many courts have observed, one
                 permissible ‘measure of a parent’s future potential is undoubtedly
                 revealed in the parent’s past behavior with the child.’” “No one
                 can divine with any assurance the future course of human events.
                 Nevertheless, past actions and relationships over a meaningful
                 period serve as good indicators of what the future may be expected
                 to hold.”

Toms, 46 Va. App. at 267-68, 616 S.E.2d at 770 (citations omitted).

        Code § 16.1-283 provides that a trial court may transfer custody of a child to the child’s

relative if that relative:

                 (i) is found by the court to be willing and qualified to receive and
                 care for the child; (ii) is willing to have a positive, continuous
                 relationship with the child; (iii) is committed to providing a
                 permanent, suitable home for the child; and (iv) is willing and has
                 the ability to protect the child from abuse and neglect . . . .

Code § 16.1-283(A1).

        The evidence showed HRSSD contacted three relatives identified by father for potential

relative placement and received no response from those relatives. Other relatives of mother were

excluded for various reasons. Throughout the process, father reported he was estranged from his

sister, but Hensley testified she had been in contact with father on about a monthly basis. She


                                                  -9-
testified she first learned about the lower court’s termination of father’s parental rights only two

weeks before the hearing in circuit court. Hensley also stated father had informed her of “some

of” the children’s special needs, but she did not ask him questions about the situation.

          Hensley testified that in the past she would see father’s children on their birthdays and on

some Christmas holidays only. She reported father was a good parent and she had seen no

concerning interactions between father and mother. Hensley stated she last saw the children in

March of 2012 and the children had never been to her home. Hensley had not visited the

children while they were in foster care. Hensley is twenty-six years old, and she has not raised

any children. She was unsure whether she had any prior convictions. The trial court indicated

Hensley’s interest in obtaining custody was untimely.

          Moreover, the record supports the finding that Hensley was not a viable relative

placement. She appeared to have had limited contact with the children and little knowledge

about their development and needs. She had no experience in raising children, and the evidence

did not show she was qualified to care for these children who both had significant developmental

issues related to their abuse and neglect.

          Accordingly, we conclude that the trial court did not err in terminating father’s residual

parental rights to S.H. and M.H. and in declining to place the children with Hensley, father’s

sister.

          For the foregoing reasons, the trial court’s ruling is affirmed.

                                                                                       Affirmed.




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