                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, O’Brien and Malveaux
UNPUBLISHED




              MEREDITH HORTON
                                                                               MEMORANDUM OPINION* BY
              v.      Record No. 0275-18-2                                     JUDGE RANDOLPH A. BEALES
                                                                                   DECEMBER 4, 2018
              PETERSBURG DEPARTMENT OF
               SOCIAL SERVICES


                                FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                                             Dennis M. Martin, Sr., Judge

                                (Marlene A. Harris, on brief), for appellant. Appellant submitting
                                on brief.

                                (Joan M. O’Donnell; Christopher B. Ackerman, Guardian ad litem
                                for the infant child; Old Towne Lawyers, LLC, on brief), for
                                appellee. Appellee and Guardian ad litem submitting on brief.


                      On January 22, 2018, the Circuit Court of the City of Petersburg entered separate orders

              terminating the residual parental rights of Meredith Horton (“Horton”) and Clayton Lancaster

              (“Lancaster”)1 in regard to their son, R.H.2 In her appeal, Horton argues that the circuit court erred

              in terminating her residual parental rights and erred in finding it to be in R.H.’s best interests to

              approve the goal of adoption.




                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                      1
                      Lancaster also appealed to this Court the order terminating his residual parental rights.
              See Lancaster v. Petersburg Dep’t of Soc. Servs., No. 0278-18-2, this day decided.
                      2
                          We use initials, instead of the child’s name, in an attempt to better protect his privacy.
                                        I. BACKGROUND3

       On appeal, we are required to view the evidence “in the light most favorable to the

prevailing party below and its evidence is afforded all reasonable inferences fairly deducible

therefrom.” Logan v. Fairfax Cty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460,

463 (1991). Therefore, in this appeal, we view the evidence in the light most favorable to the

Petersburg Department of Social Services (DSS), the prevailing party below.

       In March 2015, Child Protective Services received a complaint against Horton and

Lancaster in reference to their three-year-old son, R.H. The complaint alleged that there was

insufficient food in the home, that the parents were using drugs, and that a neighbor had to care

for R.H. Upon investigation, the Petersburg DSS found the home to be filthy and with

insufficient food for the child. The parents also tested positive for illegal substances while R.H.

was in their care. Horton tested positive for benzodiazepines, marijuana, and cocaine, and

Lancaster tested positive for marijuana and benzodiazepines. On March 13, 2015, R.H. was

physically removed from the home. On March 20, 2015, the Petersburg Juvenile and Domestic

Relations District (J&DR) Court placed R.H. in the legal custody of his maternal grandmother

(“grandmother”), under the supervision of the Petersburg DSS. On May 6, 2015, the J&DR

court issued an order requiring the parents to remain drug free, submit to drug screening,

maintain stable housing, participate in a substance abuse class, and work with DSS.

       In August 2015, Horton was incarcerated for violating the terms and conditions of her

probation from previous convictions for possession of a controlled substance. Also in August 2015,


       3
          The record in this case was sealed. Nevertheless, the appeal necessitates unsealing
relevant portions of the record for purposes of resolving the issues raised by appellant. Evidence
and factual findings below that are necessary in order to address the assignments of error are
included in this opinion. Consequently, “[t]o the extent that this opinion mentions facts found in
the sealed record, we unseal only those specific facts, finding them relevant to the decision in
this case. The remainder of the previously sealed record remains sealed.” Levick v.
MacDougall, 294 Va. 283, 288 n.1, 805 S.E.2d 775, 777 n.1 (2017).
                                                -2-
while Horton was incarcerated, DSS discovered that grandmother had traveled out of town,

leaving R.H. in the care of Lancaster. Doing so violated the safety plan that was in place as well

as the specific instructions given to grandmother. Consequently, R.H. was removed on August

20, 2015, and on August 27, 2015, the J&DR court granted temporary legal custody to the

Petersburg DSS. Horton remained incarcerated until November 2015, when she was released on

supervised probation.

       On October 21, 2015, the J&DR court approved a foster care plan that placed R.H. with

foster parents. The foster care plan included a number of responsibilities and requirements with

which Horton was to comply, including, inter alia, requirements to maintain stable, adequate,

and independent housing with no interruption in utilities for at least six months; to obtain and

maintain steady employment; to participate in a substance abuse evaluation and any

recommended treatment; to undergo a psychological evaluation; to participate in mental health

support services; to take parenting classes; and to participate in supervised visitation with R.H.

       In January 2016, in its foster care service plan review, which identified the goal of

returning R.H. home to be with his parents, DSS reported that Horton had begun substance abuse

treatment. On February 9, 2016, Horton completed her court-ordered psychological evaluation.

In its June 2016 foster care service plan review, which maintained the goal of returning R.H. to

be home with his parents, DSS reported that Horton had a job, but was inconsistent about

providing pay stubs to DSS. She had begun taking parenting classes and continued substance

abuse treatment. She consistently participated in biweekly supervised visits with R.H. She did

not have independent housing, but was residing with grandmother. In November 2016, DSS

noted “some progress,” including that parents had obtained appropriate housing and completed

parenting classes, and Horton regularly participated in visitations and tested negative on all drug




                                                -3-
screenings. With DSS permission, R.H. was then participating in unsupervised visits with

Horton.

       At the time of the March 2017 DSS foster care service plan review, DSS was in the

process of attempting to initiate overnight stays of R.H. with his parents. However, the

overnight stays never took place because, according to the testimony of the foster care social

worker to whom R.H. was assigned, “the parents had just regressed.” Specifically, Horton did

not have verified employment and had not completed her substance abuse treatment or her

mental health treatment. Both parents no longer had independent housing, but were instead

living with grandmother. Horton’s last visitation with R.H. was on January 24, 2017. Horton

had not been in contact with DSS, and DSS did not know Horton’s location. In its March 2017

foster care service plan review, DSS continued to recommend the goal of returning R.H. home to

be with his parents, but the J&DR court disapproved the goal and directed DSS to submit a new

plan with the goal of adoption. In May 2017, DSS submitted a plan with the goal of adoption,

which the J&DR court approved in June 2017.

       On April 6, 2017, Horton was again incarcerated for violating the terms and conditions of

her probation from previous convictions. She remained incarcerated until January 2018.

       On January 22, 2018, the City of Petersburg Circuit Court held an ore tenus hearing

concerning termination of the parents’ parental rights. Evidence was presented that, as of the

date of the hearing, Horton’s last visitation with R.H. was on January 24, 2017. She had not

provided to DSS certification of completion of substance abuse treatment or mental health

treatment (although she testified she had participated in substance abuse treatment while

incarcerated and had scheduled an appointment at a mental health facility). She did not have

housing (although she testified that she planned to move into her friend’s trailer, where Lancaster




                                               -4-
and her friend were living). She did not have a job (although she testified that she had three job

prospects).

       During the hearing, R.H.’s therapist, who was qualified by the circuit court as an expert

in child psychology, testified that he had been meeting with R.H. for several years and had

conducted approximately thirty sessions with R.H. He testified that, although at first R.H. was

consumed with “safety kind of issues and predictability kind of issues,” R.H. had “come a very,

very long way.” The therapist also opined that “as long as he’s in a predictable environment,

he’s getting the services he needs, there’s no reason to think he’s not going to have a good future

and going to continue to progress.” The therapist also stated that R.H. is aware that there may be

an adoption in the future or some change from his current foster home.

       At the conclusion of the ore tenus hearing, the circuit court approved a foster care plan

with a final goal of adoption and terminated the parents’ residual parental rights pursuant to

Code § 16.1-283(C)(2).

                                         II. ANALYSIS

       When reviewing a circuit court’s decision to terminate residual parental rights,

               this Court presumes that the trial court “thoroughly weighed all the
               evidence, considered the statutory requirements, and made its
               determination based on the child’s best interests.” The circuit
               court has “broad discretion in making the decisions necessary to
               guard and to foster a child’s best interests.” Therefore, in a case
               involving termination of parental rights, “[t]he 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.’”

Eaton v. Wash. Cty. Dep’t of Soc. Servs., 66 Va. App. 317, 324, 785 S.E.2d 231, 235 (2016)

(first quoting Fields v. Dinwiddie Cty. Dep’t of Soc. Servs., 46 Va. App. 1, 7, 614 S.E.2d 656,

659 (2005); then quoting Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990); and

then quoting Fields, 46 Va. App. at 7, 614 S.E.2d at 659).

                                               -5-
                                A. Termination of Parental Rights

       The circuit court terminated Horton’s residual parental rights pursuant to Code

§ 16.1-283(C), which states, in pertinent part:

               The residual parental rights of a parent or parents of a child placed
               in foster care as a result of court commitment . . . may be
               terminated if the court finds, based upon clear and convincing
               evidence, that it is in the best interests of the child and that . . .
               2. The parent or parents, without good cause, have been unwilling
               or unable within a reasonable period of time not to exceed 12
               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.

       Horton’s first assignment of error – that the circuit court erred in finding that Horton had

not substantially remedied the issues that brought the child into foster care – consists of two main

arguments. First, she argues that the initial reason for removal of the child was an unclean home,

insufficient food, and no one to care for the child. The foster care plan which imposed

requirements on Horton did not address those three initial issues. She further argues that even

considering the requirements imposed, Horton substantially complied because she “complied

with at least five of the seven requirements.” We will address these two arguments in turn.

       Horton’s first argument has no merit because it fails to take into account the full range of

circumstances surrounding R.H.’s foster care placement. R.H. was removed from his parents’

home in March 2015 as a result of DSS’s finding that the home was filthy, that there was

insufficient food, and that both parents tested positive for illegal substances. This removal did

not result in R.H.’s immediate placement in foster care. Instead, legal custody of R.H. was given

to grandmother. Subsequently, on May 6, 2015, the J&DR court issued an order requiring the

parents to remain drug free, submit to drug screening, maintain stable housing, participate in a

substance abuse class, and participate with DSS. In August 2015, R.H. was removed from the

                                                  -6-
custody of his grandmother and placed in the custody of DSS. The evidence shows that at that

time, Horton was incarcerated. We conclude that “the conditions which led to or required

continuation of the child’s foster care placement” (Code § 16.1-283(C)(2)) included a number of

circumstances put in place, at least in part, by Horton, including her drug use, her incarceration,

and her failure to provide adequate housing and care for R.H.

       Horton was incarcerated twice since the time that R.H. was placed in foster care – from

August to November 2015 and from April 2017 to January 2018 – being released only days

before the circuit court hearing on the termination of her residual parental rights. While

incarceration alone is not sufficient grounds to terminate someone’s residual parental rights,

incarceration is certainly a relevant factor among others to consider when a court reviews the

totality of the circumstances in deciding whether to terminate residual parental rights. See

Ferguson v. Stafford Cty. Dep’t of Soc. Servs., 14 Va. App. 333, 340, 417 S.E.2d 1, 5 (1992).

       Horton’s second argument fails because it is factually inaccurate. Horton contends that

“at various times [she] complied with at least five of the seven requirements” imposed by DSS.

However, the foster care plan signed on October 6, 2015, which was approved by the J&DR

court, lists twelve requirements imposed on Horton. Under responsibilities noted for Horton, the

foster care plan includes the following numbered list:

               1. Maintain safe, stable and adequate housing. Stable housing is
               defined as residing in the same residence for a minimum of six
               months with no interruption in utilities. Submit monthly copies of
               rent receipts and utilities.
               2. Obtain stable employment or income and submit pay stubs
               monthly to verify employment or income verification.
               3. Provide child support as determined by the Division of Child
               Support Enforcement or the Petersburg Juvenile and Domestic
               Relations Court.
               4. Participate in substance abuse assessment and complete any
               recommended treatment.
               5. Participate in psychological evaluation and complete any
               recommended treatment.

                                                -7-
               6. Participate in parenting classes and demonstrate knowledge of
               skills learned.
               7. Participate in visitation as arranged by PDSS and demonstrate
               the ability to care for [R.H.] and interact in a loving and
               appropriate manner.
               8. Sign releases for all service providers, so that PDSS can
               monitor progress in all areas of service.
               9. Maintain bi-weekly contact with PDSS. Ms. Horton is to notify
               the agency within 48 hours of any change in residence,
               employment, or health.
               10. Submit to random drug screenings.
               11. Attend planning meetings for [R.H.]
               12. Refrain from drug and alcohol use.

       Horton acknowledges that her alleged compliance was “at various times.” She lists that

she, at various points in time, had a residence, had employment, was seeing a mental health

professional, was testing negative for drug use, and was visiting with her child. While all this

may be true, the fact remains that, at the time of the ore tenus hearing on January 22, 2018, she

did not have independent housing or confirmed employment and had not seen R.H. for one year

(not only while she was incarcerated but for some time even before she was incarcerated). At the

time of the ore tenus hearing, Horton cannot pick and choose various points of time in the past

when she was in compliance (or near compliance) with various requirements – and then ask the

court to accumulate those various times of compliance while ignoring the times of

non-compliance or lack of substantial remedying of the identified problems.

       Even if we were to assume, as Horton argues, that Horton complied with five

requirements, we will not assume that Horton’s compliance with five out of twelve requirements

constitutes substantial remedying of the problems and issues that caused R.H. to be removed

from the home and placed in foster care.

       Code § 16.1-283(C)(2), in addition to the language quoted supra, explicitly states:

               Proof that the parent or parents, without good cause, have failed or
               been unable to make substantial progress towards elimination of
               the conditions which led to or required continuation of the child’s
               foster care placement in accordance with their obligations under
                                               -8-
               and within the time limits or goals set forth in a foster care plan
               filed with the court . . . shall constitute prima facie evidence of this
               condition.

(Emphasis added). In light of the evidence that Horton failed to substantially comply with the

goals set out for her in the foster care plan approved by the J&DR court, it is clear that the

circuit court’s decision terminating Horton’s residual parental rights was not plainly wrong or

without evidence to support it.

                                       B. Goal of Adoption

       Horton’s second assignment of error is that it was not in R.H.’s best interests for the

court to approve the goal of adoption. Horton argues that, because R.H.’s therapist noted R.H.

suffered from adjustment disorder and because placement in an adoptive home would require

R.H. to be moved again since the foster home in which he was living was allegedly not an

adoptive home, it was not in R.H.’s best interests to be moved simply in order to be adopted.

       Even assuming that the court’s approval of the permanent goal of adoption would

require R.H. to move out of his current foster home, Horton’s argument fails. As noted supra,

the circuit court remarked that R.H. had been in foster care for twenty-nine months by the time

of the January 22, 2018 ore tenus hearing. Considering Horton’s record, the circuit court also

noted that whatever temporary improvements Horton made, she repeatedly regressed. The

circuit court concluded, in referring to Horton and Lancaster, “There may be periods of where

they’re sober, and there may be periods where they’re doing okay, but based upon the testimony

I heard today, we’re going right back to where we was, and that’s not beneficial to [R.H.].”

       This Court has stated, “It 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

responsibilities.” Kaywood v. Halifax County Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394

S.E.2d 492, 495 (1990). In light of that principle, considering the totality of the evidence in this

                                                 -9-
case, the circuit court certainly could have reasonably concluded that it clearly was in R.H.’s best

interests to terminate Horton’s residual parental rights and then to approve the goal of adoption.

                                       III. CONCLUSION

       In light of Horton’s failure to comply with most of the requirements imposed upon her by

the foster care plan approved by the J&DR court on October 21, 2015, there was prima facie

evidence that Horton was unwilling or unable to remedy substantially the conditions which led to

R.H.’s placement in foster care. Furthermore, in light of the fact that R.H. had been in foster

care for twenty-nine months, which is well beyond the twelve months provided in Code

§ 16.1-283(C)(2), we cannot say that the circuit court’s conclusion – that it was in R.H.’s best

interests to terminate Horton’s parental rights and to approve the permanent goal of adoption –

was plainly wrong or without evidence to support it.

       For all of these reasons, we affirm the circuit court.

                                                                                         Affirmed.




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