                               COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Clements and Felton
Argued at Chesapeake, Virginia


LORRIE A. LUTES
                                                             MEMORANDUM OPINION* BY
v.     Record No. 1302-05-1                                JUDGE JEAN HARRISON CLEMENTS
                                                                   MARCH 28, 2006
VIRGINIA BEACH DEPARTMENT
 OF HUMAN SERVICES


               FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                             Edward W. Hanson, Jr., Judge1

                 B. Cullen Gibson for appellant.

                 Nianza E.Wallace II, Associate City Attorney (Leslie L. Lilley, City
                 Attorney; Mark D. Stiles, Deputy City Attorney, on brief), for
                 appellee.

                 No brief or argument by Howard E. Copeland, Guardian ad litem
                 for the infant child.2


       Lorrie A. Lutes (mother) appeals from a decision of the trial court terminating her residual

parental rights to her minor son, R.H. On appeal, mother contends that the trial court erred in




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         With the exception of the final order entered on August 1, 2005, from which this appeal
was officially taken, the Honorable A. Joseph Canada, Jr., presided over the proceedings
addressed in this opinion.
       2
          The record reflects that the guardian ad litem for the infant child was provided notice
pursuant to Rule 5A:6. He did not file a responsive brief with this Court, nor join with any other
party as provided in Rule 5A:19. “Standard J. of the Standards to Govern the Performance of
Guardians Ad Litem for Children, effective September 1, 2003 calls for all guardians ad litem to
‘file appropriate . . . briefs[] and appeals on behalf of the child and ensure that the child is
represented by a [guardian ad litem] in any appeal involving the case.’” Brown v. Spotsylvania
Dep’t of Soc. Servs., 43 Va. App. 205, 209 n.1, 597 S.E.2d 214, 216 n.1 (2004).
finding, by clear and convincing evidence, that her parental rights should be terminated. Finding no

error, we affirm.

          As the parties are fully conversant with the record in this case, and because this

memorandum opinion carries no precedential value, this opinion recites only those facts and

incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this

appeal.

                                            BACKGROUND

          We view the evidence in the “light most favorable” to the prevailing party in the trial court

and grant to that party the benefit of “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, 463 (1991). “[T]he

trial judge’s ‘determination is considered to have settled all conflicts in the evidence in favor of the

prevailing party.’” Richmond Dep’t of Soc. Servs. v. Crawley, 47 Va. App. 572, 580, 625 S.E.2d

670, 674 (2006) (quoting Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 796 (1990)).

“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.” Ferguson v. Stafford County Dep’t of

Social Services, 14 Va. App. 333, 336, 417 S.E.2d 1, 4 (1992).

          So viewed, the evidence proved that R.H., who was born on May 23, 1993, entered foster

care on July 22, 2003. Mother’s boyfriend had struck mother and R.H., and a Foster Care Service

Plan prepared by the Virginia Beach Department of Social Services (VBDSS) (Virginia Beach

Department of Human Services, VBDHS, was formerly known as VBDSS) on September 8, 2003,

stated that foster care resulted from concerns about the child’s safety as well as from mother’s

failure to provide “food, shelter or any resources.” The Program Goal indicated in the September 8

service plan was a return to living with the mother. The September 8 service plan detailed several

steps mother should take in order for R.H. to be returned to her care, including the retention of

                                                   -2-
stable employment and adequate housing, the completion of parenting and domestic violence

classes, and mother’s participation in counseling with appropriate therapists.

        In the year that followed, and indeed until the time of the trial court hearing, mother did not

obtain adequate housing and failed to maintain stable employment. Moreover, in the nearly two

years since R.H. entered foster care, mother completed neither parenting nor domestic violence

classes. And although she became generally more “compliant” with her treatment for depression,

she did not consistently attend therapy. Her depression improved somewhat, but remained

unresolved.

        During the same time period clinical social worker Lois Swersky was R.H.’s sole therapist.

She treated him twenty-three times between July 31, 2003, and June 10, 2004, for problems

including Post-Traumatic Stress Disorder (PTSD) arising from his maltreatment at the hands of men

mother had brought into his life. Under his foster parents’ care the condition had greatly improved,

and on June 14, 2004, Swersky responded to a VBDHS request with a recommendation of

permanent foster care, an arrangement that would nevertheless allow mother to visit with R.H. The

recommendation was conditioned on mother’s willingness to be supportive of the arrangement.

However, although fully participating in visitation with R.H., mother was often disruptive during

visits, attempting at times to undermine the authority of the foster family and their relationship with

R.H. Swersky later acknowledged that mother’s behavior in visitation left R.H. emotionally

conflicted, and created problems she was obligated to address therapeutically.

        On June 24, 2004, VBDHS filed a second service plan, indicating that the program goal had

changed to adoption. The juvenile and domestic relations district court heard argument on the

termination of mother’s residual parental rights on December 21, 2004, and entered a termination

order on December 29. Mother challenged the order on de novo appeal to the trial court, and an ore

tenus hearing was held on May 3, 2005.

                                                 -3-
        Swersky testified that in the two years prior to the trial court hearing she was the only

therapist to treat R.H., seeing him more than fifty times. She gave her expert opinion that visitation

with the mother—whether supervised or otherwise—would not be in R.H.’s best interests as contact

with the mother would undermine the progress R.H. had made and would continue to make in the

care of the foster family. The guardian ad litem—who had twice met with R.H. in the foster

parents’ home and reported that R.H. wished to live with his mother—“leaned toward” the opinion

that parental rights should not be terminated.

        The trial court found the evidence clear and convincing that mother had failed to remedy the

major conditions that had led to R.H.’s foster care, relative particularly to stable housing, adequate

income, and the avoidance of domestic violence. It also found that continued visitation would be

harmful to R.H.’s emotional state and that termination of mother’s parental rights was therefore in

his best interests.

        On August 1, 2005, the court entered an order terminating mother’s parental rights. This

appeal followed.

                                             ANALYSIS

        To terminate parental rights under Code § 16.1-283(C)(2), the trial court must find by clear

and convincing evidence that termination is in the best interests of the child and that mother failed to

remedy substantially the conditions leading to or requiring continuation of foster care despite

receiving reasonable and appropriate services. Mother does not challenge the finding that she failed

to remedy the conditions necessitating foster care, arguing solely that VBDHS failed to demonstrate

by clear and convincing evidence that the termination of mother’s parental rights was in the child’s

best interests. Mother points to the testimony of her mental health professionals that she had

improved in some respects since July of 2003 and to the fact that the child is doing well in foster

care to argue that the trial court drew the wrong conclusion from the evidence. She contends that

                                                  -4-
such facts militate not to the severance of her parental rights, but to the maintenance of the status

quo. We disagree.

        As we have already noted, the inferences to be drawn from proven facts are matters reserved

solely to the fact finder. See Hunley v. Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349

(1999). Moreover, the “[t]ermination of residual parental rights is a grave, drastic, and irreversible

action,” Helen W. v. Fairfax County Dep’t of Human Dev., 12 Va. App. 877, 883, 407 S.E.2d 25,

28-29 (1991), and we presume the trial court “‘to have thoroughly weighed all the evidence,

considered the statutory requirements, and made its determination based on the child’s best

interests,’” Logan, 13 Va. App. at 128, 409 S.E.2d at 463 (quoting Farley, 9 Va. App. at 329, 387

S.E.2d at 796). “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.’” Id. (quoting Peple v.

Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988)).

        It cannot be said that the factual inferences drawn by the trial court were plainly wrong. The

evidence showed that mother had obtained neither stable housing nor adequate employment in the

nearly two years since her child had entered foster care. While R.H. was in her care mother had

exposed him to domestic abuse, yet since June of 2003 she had not completed parenting classes,

attended a domestic violence program, or taken any tangible step that might suggest to the fact

finder that she would not expose R.H. to such risk in the future. Further, mother had participated in

therapy inconsistently, and her depression remained unresolved. R.H., on the other hand, was

thriving under the care of his foster parents, even moving toward recovery from the lingering effects

of his time spent in mother’s care. Citing his improvement and the detrimental effect mother’s

behavior had on his emotional state, R.H.’s therapist—the professional in the best position to draw

such a conclusion—testified that visitation was not in R.H.’s best interest. The evidence therefore

supports the trial court’s findings that VBDHS presented clear and convincing evidence that

                                                  -5-
mother’s parental rights should be terminated and that the termination of mother’s parental rights

was in the child’s best interests.

        Accordingly, we affirm the decision of the trial court.

                                                                                           Affirmed.




                                                 -6-
