                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, McClanahan and Senior Judge Coleman
Argued at Salem, Virginia


ANGELA TARANTINI

v.     Record No. 1620-05-3

ROCKBRIDGE COUNTY
 DEPARTMENT OF SOCIAL SERVICES                                MEMORANDUM OPINION* BY
                                                                JUDGE LARRY G. ELDER
TONI ANN TARANTINI                                                   MAY 9, 2006

v.     Record No. 1666-05-3

ROCKBRIDGE COUNTY
 DEPARTMENT OF SOCIAL SERVICES


                   FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
                                Michael S. Irvine, Judge

                 Rebecca A. Belew for Angela Tarantini.

                 Joshua O. Elrod (Mann Vita & Elrod, L.L.C., on brief), for Toni
                 Ann Tarantini.

                 Michael A. Groot (H. David Natkin; Robert B. Armstrong,
                 Guardian ad litem for minor child, on brief), for Rockbridge
                 County Department of Social Services.


       In these related cases, Toni Ann Tarantini, mother of three-year-old D. (mother), and

Angela Tarantini, maternal grandmother of D. (grandmother), appeal the trial court’s order

terminating mother’s parental rights. Mother concedes she was not personally able to care for

the child but argues the evidence established both that the Department of Social Services (DSS)

failed to meet its burden of investigating placement with a family member and that her mother,


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Angela, was a suitable custodian. As a result, she argues, the court’s termination of her parental

rights was an abuse of discretion because a suitable family placement existed. Grandmother’s

assignment of error is based solely on the court’s determination that she was not “an appropriate

family placement.” We hold DSS met its burden of investigating placement with a family

member and that the evidence supports the trial court’s conclusion that placement of D. with

grandmother was not appropriate. Thus, we hold the evidence supported the trial court’s

termination of mother’s parental rights, and we affirm.

                                                   I.

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

the evidence all reasonable inferences fairly deducible therefrom. Logan v. Fairfax County

Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991). On review, we

presume the trial court “thoroughly weighed all the evidence, considered the statutory

requirements, and made its determination based on the child’s best interests.” Farley v. Farley, 9

Va. App. 326, 329, 387 S.E.2d 794, 796 (1990). We may not disturb the trial court’s judgment

unless it is plainly wrong or without evidence to support it. Logan, 13 Va. App. at 128, 409

S.E.2d at 462.

       Code § 16.1-283 provides in relevant part as follows:

                 A.     ....

                         Any order terminating residual parental rights shall be
                 accompanied by an order continuing or granting custody to a local
                 board of social services, to a licensed child-placing agency or the
                 granting of custody or guardianship to a relative or other interested
                 individual, subject to the provisions of subsection A1 of this
                 section. However, in such cases the court shall give consideration
                 to granting custody to relatives of the child, including
                 grandparents.

                           *       *       *       *      *       *       *



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               A1. Any order transferring custody of the child to a relative or
               other interested individual pursuant to subsection A of this section
               shall be entered only upon a finding, based on a preponderance of
               the evidence, that the relative or other interested individual is one
               who, after an investigation as directed by the court, (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; and the order shall so state. The
               court’s order transferring custody to a relative or other interested
               individual should further provide, as appropriate, for any terms and
               conditions which would promote the child’s interest and welfare.

       In Logan, we interpreted this code section to require that, either prior to or in conjunction

with a termination of parental rights, “the Department has a duty to produce sufficient evidence

so that the court may properly determine whether there are relatives willing and suitable to take

custody of the child, and to consider such relatives in comparison to other placement options.”

13 Va. App. at 131, 409 S.E.2d at 465; see Hawthorne v. Smyth County Dep’t of Soc. Servs., 33

Va. App. 130, 138, 531 S.E.2d 639, 643 (2000) (holding “Logan and Sauer [v. Franklin County

Dep’t of Soc. Servs., 18 Va. App. 769, 771, 446 S.E.2d 640, 642 (1994),] remain good law

following the 1998 revision to Code § 16.1-283(A)”). Where a court “[gives] inadequate

consideration to placing [a child] in [a relative’s] custody as a reasonable alternative to the

termination of . . . parental rights,” the termination of parental rights must be reversed. Sauer, 18

Va. App. at 770, 446 S.E.2d at 640. As we noted subsequent to Logan, our holding in that case

was not “mean[t] to suggest that the Department has a duty in every case to investigate the home

of every relative of the child[], however remote, as a potential placement.” Sauer, 18 Va. App. at

771, 446 S.E.2d at 642. We did hold, however, that “a grandparent with whom a parent resides

is obviously a potential option for placement of the child[] as contemplated by Code

§ 16.1-283(A)” and the fact “[t]hat the grandmother did not present herself to the Department or

the trial court as an alternative placement for the child[] to the termination of [the parent’s]

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parental rights is not material.” Id. at 772-73, 446 S.E.2d at 642. Because the trial court in Sauer

heard no evidence or argument about the suitability of grandmother’s home, we held the

Department failed to meet its burden. Id. at 773, 446 S.E.2d at 642.

       In the instant case, mother contends that DSS did not meet its burden of investigating

placement with a family member. However, the record establishes that DSS investigated

grandmother’s suitability as a custodian, and mother does not aver that anyone other than

grandmother was, in fact, a suitable custodian. Further, the record establishes that DSS’s

investigation of other family members, although perhaps not exhaustive, was sufficiently

thorough to permit the trial court to conclude DSS met its statutory burden, as interpreted in

Logan and Sauer.

       The evidence showed that DSS was unable to locate the man mother identified as D.’s

father, with whom she described her relationship as brief, or any of his family. Mother’s only

immediate family members, in addition to grandmother, were mother’s brother, Gino, who was

twenty years old at the time of the hearing, and grandmother’s mother, Agnes Bilisits, who

resided in Pittsburgh and had seen D. on only three occasions for no more than a few weeks at a

time. DSS indicated in the various foster care plans that it had contacted these family members

“in an effort to achieve the goal of placement with relatives.” It reported that although “[t]here

were extensive periods of time when Uncle Gino was the primary care provider for [D.] during

the time [D.] lived with his mother,” Gino “has not expressed an interest in providing physical

care for [D.].” DSS indicated that “the . . . members” of mother’s family “have expressed an

interest [only] in visiting with [D.].” Agnes Bilisits, although present at trial and testifying in

grandmother’s behalf, gave no indication that she had changed her mind about accepting custody

of D. This evidence supports the finding that DSS met its burden of “considering whether there




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[were any other] relatives willing and suitable to take custody of the child” in lieu of terminating

mother’s parental rights. See Logan, 13 Va. App. at 131, 409 S.E.2d at 465.

       Mother and grandmother contend next that the trial court abused its discretion in

concluding grandmother was not a suitable custodian for D. Mother contends additionally that

the trial court erred in applying the best interests standard and that it was required to make a

specific finding that placement with grandmother would be “unreasonable.” We reject these

contentions and hold the evidence, viewed in the light most favorable to DSS, supported the trial

court’s ruling that grandmother was not a suitable custodian for D.

       Our case law clearly establishes that, “[w]hen 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, 13 Va. App. at 128, 409 S.E.2d at 462

(emphasis added); see also Wright v. Alexandria Div. of Soc. Servs., 16 Va. App. 821, 827, 433

S.E.2d 500, 503 (1993) (holding that, in determining whether termination of parental rights is

proper, “[t]he child’s best interest is the paramount concern, keeping in mind the familial bonds

and the rights of both the parent and the child to maintain that bond where it can be done without

substantial threat to the child’s well-being”). Further, a trial court is presumed to know and

properly apply the law, “[a]bsent clear evidence to the contrary in the record.” Yarborough v.

Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977). Unless expressly required by

the applicable statute, see, e.g., Code § 20-107.1(F) (requiring that “[I]n contested [spousal

support] cases in the circuit courts, any order granting, reserving or denying a request for spousal

support shall be accompanied by written findings and conclusions of the court identifying the

[statutory] factors . . . which support the court’s order” (emphasis added)), Code § 20-108.1(B)

(requiring court to follow statutory guidelines for calculating child support and to “make written

findings” of fact justifying any deviation from amount due under guidelines (emphasis added)), a

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court is not required to make explicit findings of fact to support its decision, Akers v.

Commonwealth, 31 Va. App. 521, 532 n.5, 525 S.E.2d 13, 18 n.5 (2000).

        Code § 16.1-283 requires that a court “shall give consideration to granting custody to

relatives of the child, including grandparents,” and that “[a]ny order transferring custody of the

child to a relative . . . shall be entered only upon a finding . . . that the relative . . . is one who,

after an investigation as directed by the court,” meets certain delineated conditions. However,

the statute does not require that the court’s findings be explicitly stated on the record, either

orally or in writing. Compare id. (“upon a finding”) with Code § 20-107.1(F) (requiring “written

findings”) and Code § 20-108.1(B) (requiring “written findings”). Furthermore, the statute does

not speak at all to the findings necessary when the court declines to enter an order transferring

custody. Thus, as long as the evidence supports the trial court’s decision not to award custody to

grandmother, the trial court did not err by failing to make an express finding that placement of D.

with grandmother would be, as mother phrases it, “unreasonable.”

        Further, viewing the evidence in the light most favorable to DSS, rather than to

grandmother or mother, as we must on appeal, we conclude the record supports the trial court’s

finding that grandmother was not a suitable custodian for D.

        The evidence, viewed in the light most favorable to the Commonwealth, established that

grandmother suffered from a variety of psychological problems, including bipolar disorder, for a

period of at least eight to eleven years and perhaps longer. Those problems began in 1990, when

her own children were about eight and six years old. In 1992, shortly before her son Gino’s

eighth birthday, grandmother voluntarily relinquished custody of him to DSS, saying she was

physically and mentally unable to care for him. Gino remained in foster care until 1996, during

which time DSS documented that grandmother’s compliance with the requirement that she take

parenting classes and attend counseling with Gino was intermittent. DSS also documented that

                                                   -6-
grandmother resided with a boyfriend who drank alcohol and displayed violent tendencies

toward both grandmother and Gino and that Gino was afraid of him. The records also contained

information that “Gino had sexually molested” a 2 1/2 year old girl in grandmother’s care and

that, when confronted by the girl’s mother, grandmother told Gino “that she ‘wouldn’t hold it

against him but for him not to mess with her again.’” Other information contained a report of

grandmother’s “having sex in front of her children.” In 1998, grandmother sought help from

DSS in dealing with mother, who was then sixteen, saying she was “overwhelmed [by] some of

[mother’s] behaviors.”

       The evidence also established that grandmother began receiving social security disability

benefits for her bipolar disorder in 1996. Although grandmother claimed not to have needed

medication for her disorder since 1998 and not to have been troubled by it since that time, she

admitted receiving disability benefits for it until 2001. Further, although the mental health

provider, Richard Timura, who examined grandmother in the course of this custody proceeding

concerning D. opined that grandmother was “probably functioning without any mental[] disorder

symptoms,” he expressly conditioned that opinion on the “assum[ption] [that] her reporting of

her situation is accurate.” Grandmother said on cross-examination that she told Timura she had

been treated for bipolar disorder fourteen years earlier, but she admitted she never told him she

had received disability benefits for that disorder from 1996 to 2001 because “[he] didn’t . . . ask

me that.” She also told Timura “there were no family issues,” saying she did so because there

were no family issues at the time he inquired. Thus, the record indicates grandmother was not

forthcoming with Timura about her own prior involvement with social services and the impact of

her psychological history on her ability to care for her own children.

       Similar concerns existed over the accuracy of grandmother’s reporting to the Anson

County DSS. The Anson County reports indicate grandmother said “she has no issues that

                                                -7-
would inhibit her to properly care for the minor child” and that “she has never been involved

with Child Protective Services in the past.” The reports give no indication that grandmother

informed the Anson County DSS evaluator of her history of mental illness, even if she claimed it

was then dormant, and she specifically told the DSS evaluator that she had never been involved

with Child Protective Services when, in fact, her son Gino had been in the custody of DSS in

Virginia for a period of four years. These aspects of grandmother’s reporting gave the trial court

good reason to question grandmother’s credibility at the time of the hearing, as well.

       Although these findings alone are sufficient to support the trial court’s decision, the court

noted additionally the observations of Anson County DSS in its investigation. Those

observations included grandmother’s failure to present to DSS a concrete plan for secondary

child care and the Department’s belief, based on what grandmother reported to it at the time of

the investigation, that she had insufficient financial resources to permit her to care for D.

Although grandmother named a private care provider she planned to use, she provided no details

about that individual or the cost of such care.

       Finally, although mother expressed her desire at the hearing to have the court give

custody of D. to grandmother in lieu of terminating her parental rights, mother had earlier told

DSS that she and grandmother “have many issues that stem from [mother’s] childhood” when

“[grandmother] did not provide [mother] with the love and support she needed” and that she did

not want grandmother to have custody.

       These factors, taken together and viewed in the light most favorable to DSS, supported

the trial court’s conclusion that placement with grandmother would not be in D.’s best interest.

Thus, we hold the evidence supports the trial court’s finding, not separately contested by mother,

that the evidence supported a termination of her parental rights under Code § 16.1-283(B).




                                                  -8-
                                                II.

       For these reasons, we hold the evidence, viewed in the light most favorable to DSS,

supports the trial court’s conclusion that DSS met its burden of investigating placement with a

family member and that placement of D. with grandmother was not appropriate. Thus, we hold

the evidence supported the trial court’s termination of mother’s parental rights, and we affirm.

                                                                                         Affirmed.




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