                     COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Fitzpatrick and Annunziata
Argued at Alexandria, Virginia


SANTO SHEFFEY-BEY
                                           MEMORANDUM OPINION *
v.   Record No. 0192-97-4           BY JUDGE JOHANNA L. FITZPATRICK
                                            OCTOBER 28, 1997
ARLINGTON DEPARTMENT
 OF HUMAN SERVICES


              FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                      Richard J. Jamborsky, Judge
             Robert J. Hill for appellant.

             Mary E. Craig, Assistant County Attorney
             (Barbara S. Drake, County Attorney, on
             brief), for appellee.



     Santo Sheffey-Bey (father) appeals from an order terminating

his parental rights to his two minor children pursuant to

Code § 16.1-283.    Father contends that the trial court erred in

finding that he had, without good cause, failed to substantially

remedy the conditions which led to the children's foster care

placement.    Finding no error, we affirm.

     On appeal, we review the evidence in the light most

favorable to the prevailing party below, in this case the

Arlington Department of Human Services.      Schoenwetter v.

Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 30 (1989).

Where the record contains credible evidence in support of the

findings made by the trial court, we may not retry the facts or

substitute our view of the facts.     See id.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     Santo Sheffey-Bey is the natural father and Sharon Sheffey

(mother) is the natural mother of Savannah Sheffey (D.O.B.

8-26-90) and Samone Sheffey (D.O.B. 2-28-92).   During the course

of the parties' relationship, which began before the birth of the

two children who are the subjects of these petitions, there were

five "founded" cases of child abuse against mother.

Additionally, mother was hospitalized on several occasions due to

injuries resulting from physical altercations between herself and

father.   Father was incarcerated at least three times for various

offenses, including drug-related charges.
     In April 1992, while father was incarcerated, mother moved

to a "crack house" with Samone and Savannah and their three older

half-siblings.   Upon learning where his wife and daughters were

living, the father notified Pro-Child of their living conditions

and on June 19, 1992, all five children were removed and placed

into foster care by the Arlington Department of Human Services

(DHS).    Savannah and Samone were then placed in the foster home

of Charmaine Grant, where they have remained.

     DHS had provided services for the family since 1988 and

continued to offer multiple services in an attempt to prevent the

removal of the children.   These services included day care,

mental health referrals, substance abuse referrals,

transportation, clothing, food, parenting and budgeting

counseling, housing, and emotional support.   Despite these

efforts, the parents were unable or unwilling to remedy the




                                  2
conditions which resulted in the children's foster care

placement.

     DHS's initial sixty-day foster care service plan, dated

August 1992, indicated the program goal to be "return home," and

set December 1992 as the target date for achieving this goal.

The report detailed several necessary steps for the parents to

take before the children could be returned to them.    The children

remained in foster care for the next three years, while the

parents continued to receive substantial opportunities for

assistance.
     During that period, father was arrested for assaulting

mother; mother remained unable to maintain independent living or

to remove herself from the violent relationship with father;

father failed to secure permanent employment or to curb his

abusive behavior; and father remained unable or unwilling to

refrain from substance abuse or to comply with proffered

treatment services.    Neither parent cooperated or adequately

complied with the services offered by DHS.    Thus, in February

1995, the foster care service plan goal was changed to

"adoption," and in March 1995, DHS filed petitions for the

termination of both parents' rights. 1   On October 21, 1996,
     1
      The petitions for the termination of parental rights to
both Savannah and Samone state, in pertinent part, as follows:

             The parental rights of the child's mother and
             father require termination in that, . . .
             both natural parents, without good cause,
             have been unwilling or unable to remedy
             substantially the conditions which led to the



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mother voluntarily entered into permanent entrustment agreements

relinquishing custody of the children to DHS for adoptive

placement.

       An ore tenus hearing regarding the termination of the

father's residual parental rights was held October 21-23, 1996.

Several expert witnesses testified about their work with father

and the children.    Victor Elion, Ph.D., a licensed clinical

psychologist, testified that pursuant to the request of DHS, he

conducted an evaluation of father's psychological characteristics

and functions.    He found that father had a longstanding substance

abuse problem and a history of "beating [the mother] up."      He

characterized father as having "schizo-affective disorder,

bipolar type" as well as "intermittent explosive disorder" and

"paranoid personality disorder."       A person who has intermittent

explosive disorder "is inclined to erupt into explosive and

violent episodes on slight provocation."      Dr. Elion concluded

that
             Mr. Sheffey was not an ideal candidate for
             treatment and, indeed, if he were to
             participate, it would only be because he was
             pressured into it, and even then he would
             child's foster care placement or to make
             reasonable progress towards the elimination
             of said conditions notwithstanding the
             reasonable and appropriate efforts of
             ACBSS/DHS to such end, having failed to
             comply with the original foster care plan
             furnished to them, filed, and approved by the
             Court on or about 8/16/92; therefore,
             ACBSS/DHS requests that the parental rights
             of Mrs. Sharon Arnetta Sheffey and Mr. Santo
             Ortez Sheffey be terminated.




                                   4
          likely be argumentative, resistant and not
          seeing the services of any potential benefit
          to him.


     William Davis, an expert substance abuse counselor,

testified that in 1994 he began providing services to father

"with the hope that he could become stable and free from

substance abuse and improve his life."   Mr. Davis continued to

counsel father through October 1995, when father was incarcerated

again and Davis was not permitted to visit him in jail.
     At the conclusion of the hearing, the trial court found that
          Mr. Sheffey-Bey lacks insight . . . he makes
          excuses. He rationalizes . . . .
               Now, I find that the County has proved
          by clear and convincing evidence that Mr.
          Sheffey-Bey had neglected or abused the two
          children and that as a result . . . there was
          a serious and substantial threat to their
          life, health or development.
               And this is what I think he did. First
          of all, I think that his temper in the
          domestic violence clearly is a form of abuse
          for those children . . . .
               There is testimony that this mother had
          several scars on her face as a result of [the
          father's abuse].
               And it's inconceivable to me that those
          children are not perceptive enough to see
          that their mother has these scars. I'm sure
          they discussed how the scars got there.
               So even for the sake of argument, though
          this is not a finding of fact, even if those
          children were not present in every instance
          of physical abuse, I still conclude that that
          kind of conduct and its results on the mother
          have an impact on the child.
               I also conclude that there is neglect
          with respect to his own drug and alcohol
          involvement. And I conclude that there was
          abuse and neglect with respect to his
          frequent jail trips.
               The evidence is that there were 11
          convictions in 17 years . . . .
               And I would never for a moment conclude



                                5
that someone is an unfit parent or has abused
or neglected the children just because
they're in jail or in prison, but that's not
the situation here.
      This is a situation where someone by all
objective looks -- I don't believe this about
him, but by objective looks at the record is
a career criminal with 11 convictions in 17
years.
      And the fact that he's not around those
children meant that one of those children
went through the most hideous, despicable
forms of abuse that I can possibly imagine.
      And . . . there is no doubt in my mind
that Savannah was sexually abused by someone.
 And I don't think that it was Mr.
Sheffey-Bey. But the fact that he wasn't
there as the parent because of choices that
he made is definitely a form of neglect. And
it wasn't on just one occasion.
      I indicated that I think Mr. Sheffey-Bey
had lack of insight. And it leads me to the
other form of neglect . . . .
      [H]e was telling me in his direct
testimony that he made up to $1,500 a week or
month or whatever it was, I asked him if he
paid child support. And his response to that
question was, quote, no one asked me to pay.
. . .
      That, too, is a form of neglect.
      Now, these things individually, standing
alone may not be sufficient; but when you
take all of these factors together, that is
clear and convincing and overwhelming
evidence of neglect.
      I further find that the testimony --
that the evidence by clear and convincing
evidence shows that Mr. Sheffey-Bey without
good cause has not responded to or followed
through with the appropriate, available and
reasonable rehabilitative efforts on the part
of social medical and mental health or other
rehabilitation agencies designed to reduce,
eliminate or prevent the neglect or abuse of
the children.
      I think that the testimony is
overwhelming on that point . . . .
      And I think that the children's
therapist was a very, very persuasive
witness. And I put great weight in her
testimony in considering what's to be done.



                      6
                 So with that analysis I'm of the opinion
            that Mr. Sheffey-Bey's parental rights should
            be terminated. And it will be so ordered.




       On December 21, 1996, the trial court issued its order and

made the following findings, based upon clear and convincing

evidence, regarding the father's residual parental rights:
               1.   The neglect and/or abuse suffered
          by Savannah and Samone Sheffey presented a
          serious and substantial threat to their life,
          health and development; and that
                 2.   It is not reasonably likely that
            the conditions which resulted in such neglect
            and abuse can be substantially corrected or
            eliminated so as to allow the children's safe
            return to Santo Sheffey within a reasonable
            period of time; and that

                 3.   The father has without good cause
            been unwilling or unable within a reasonable
            period not to exceed twelve months to remedy
            substantially the conditions which lead [sic]
            to the children's foster care placement,
            notwithstanding the reasonable and
            appropriate efforts of the Arlington
            Department of Human Services to such end.


Accordingly, the court terminated the father's residual parental

rights.

       The record established at the hearing clearly supports the

trial judge's determination that it was in the best interests of

the children that father's residual parental rights be

terminated.   Code § 16.1-283(C)(2) provides, in pertinent part,

that
            [t]he residual parental rights of a parent
            . . . of a child placed in foster care . . .
            may be terminated if the court finds, based
            upon clear and convincing evidence, that it



                                  7
          is in the best interests of the child and
          that . . . [t]he parent . . . without good
          cause [has] been unwilling or unable . . . to
          remedy substantially the conditions which led
          to the child's foster care placement.


See also Lecky v. Reed, 20 Va. App. 306, 456 S.E.2d 538 (1995).

Father had ample time from 1992 until 1995 to utilize the

numerous services made available to him to correct his drug use

and abusive conduct and to follow through on the various

therapies offered to him to deal with his psychological problems.

He failed to do so.   Additionally, the children's special needs

occasioned by the actions of both father and mother were being

met by their foster mother.
     For the above stated reasons, the judgment of the trial

court is affirmed.
                                                          Affirmed.




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