                                COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Clements and Senior Judge Annunziata


TRISHA ROBESON
                                                                   MEMORANDUM OPINION *
v.      Record No. 1891-08-3                                           PER CURIAM
                                                                     DECEMBER 23, 2008
ROANOKE CITY DEPARTMENT
 OF SOCIAL SERVICES


                    FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
                                 Charles N. Dorsey, Judge

                  (Rena G. Berry, on brief), for appellant. Appellant submitting on
                  brief.

                  (William M. Hackworth, City Attorney; Heather P. Ferguson,
                  Assistant City Attorney; L. Brad Braford, Guardian ad litem for the
                  infant child, on brief), for appellee. Appellee and Guardian ad
                  litem submitting on brief.


        Trisha Robeson (mother) appeals a decision of the trial court terminating her residual

parental rights to her minor child, J.W. Mother contends the evidence was insufficient to support

the termination under Code § 16.1-283(B). Upon reviewing the record and the parties’ briefs, we

affirm the trial court’s decision.

                          When reviewing a decision to terminate parental rights, we
                  presume the circuit court “thoroughly weighed all the evidence,
                  considered the statutory requirements, and made its determination
                  based on the child’s best interests.” “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.’” In
                  its capacity as factfinder, therefore, the circuit court retains “broad
                  discretion in making the decisions necessary to guard and to foster
                  a child’s best interests.”



        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 265-66, 616 S.E.2d 765, 769 (2005)

(citations omitted). However,

                [b]ecause “the rights of parents may not be lightly severed,” clear
                and convincing evidence must establish the statutory grounds for
                termination. In the end, the “child’s best interests” remain the
                “paramount consideration” of the court. Even on this issue,
                however, we cannot “substitute our judgment” for the circuit
                court’s, but rather review the record only to determine if sufficient
                evidence supports it.

Id. at 266, 616 S.E.2d at 770 (citations omitted).

        Code § 16.1-283(B) provides in its pertinent part that the residual parental rights of a

parent of a child found by the court to be neglected or abused and placed in foster care as a result

of court commitment 1 may be terminated if clear and convincing evidence proves that it is in the

best interests of the child and that:

                        1. The neglect or abuse suffered by such child presented a
                serious and substantial threat to his life, health or development;
                and

                        2. It is not reasonably likely that the conditions which
                resulted in such neglect or abuse can be substantially corrected or
                eliminated so as to allow the child’s safe return to his parent or
                parents within a reasonable period of time. In making this
                determination, the court shall take into consideration the efforts
                made to rehabilitate the parent or parents by any public or private
                social, medical, mental health or other rehabilitative agencies prior
                to the child’s initial placement in foster care.

                       Proof of any of the following shall constitute prima facie
                evidence of the conditions set forth in subdivision B 2 hereof:

                        a. The parent . . . [is] suffering from a mental or emotional
                illness or mental deficiency of such severity that there is no
                reasonable expectation that such parent will be able to undertake
                responsibility for the care needed by the child in accordance with
                his age and stage of development . . . .


        1
         Mother does not dispute that J.W. was removed from her care on August 1, 2006, and
subsequently found to be abused and neglected, placed in the legal custody of DSS, and placed in
foster care, as a result of court commitment.

                                                -2-
       Here, the factual record contains credible evidence to support the trial court’s decision to

terminate mother’s residual parental rights to J.W., and to support a finding that DSS proved by

clear and convincing evidence the requirements necessary for termination under Code

§ 16.1-283(B).

       “[V]iew[ing] the evidence in the light most favorable to [DSS,] the prevailing party

below[,] and grant[ing] to it all reasonable inferences fairly deducible therefrom, see Logan v.

Fairfax County Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991), it

established that on August 1, 2006, J.W. was removed from mother’s care when he was five and

one-half months old due to abuse and neglect. The incident that precipitated the removal

occurred when mother, after ingesting “ginseng seeds” in order to “trip,” awoke and believed

that she had seen J.W. dead. In reality, J.W. was fine and had not been in mother’s care since the

previous evening when she had left him at a friend’s home. The child protective services worker

who responded to the complaint alleging that mother and J.W.’s father were unable to care for

J.W. found mother erratic, delusional, and unstable. Mother indicated she had been diagnosed

with severe bipolar disorder and postpartum depression. Mother reported she had not been on

medication for four years because she did not think she needed it. When mother and father came

to DSS the next day, they admitted a history of domestic violence in the home when J.W. was

present. On one occasion, mother threw a knife at J.W.’s father, hitting him in the leg. She was

charged with felony malicious wounding. As a result of the abuse and neglect finding, J.W. was

placed in DSS’s legal custody.

       The initial foster care plan developed after J.W. was placed in DSS’s custody required

that mother gain and maintain stable and appropriate housing, successfully complete parenting

classes, demonstrate an ability to learn and practice parenting skills, complete a substance abuse

assessment and participate in treatment if deemed appropriate, cooperate fully with DSS and any

                                               -3-
other service providers, and visit J.W. as scheduled and have appropriate behavior and

interaction with J.W. Mother was also referred for a psychological evaluation, asked to attend

individual and family counseling, and referred to a domestic violence program.

       Mother’s housing did not remain stable during the time J.W. was in foster care. She

moved numerous times and, according to DSS, was contemplating another move at the time of

the trial court termination hearing. 2 While mother reported attending individual and family

counseling, she did not sign consent forms for DSS to verify her attendance. Mother completed

parenting classes, a substance abuse assessment, and the domestic violence program. Initially,

mother’s visits with J.W. were inconsistent. She missed eleven visits between August 1, 2006

and March 29, 2007. However, she began to visit more regularly, and beginning June 28, 2007,

her visits increased to allow outside community visits with J.W.’s father also present. However,

those visits were suspended on July 26, 2007. At that time, J.W.’s father had tested positive for

marijuana and lied about his employment, and DSS was concerned about mother’s inability to

parent by herself, as reported by Tricia D. Thornburgh, the licensed clinical psychologist who

had previously evaluated mother. In September 2007, J.W.’s father was arrested for assault and

battery and felony abduction of mother. 3 After J.W.’s incarceration, mother’s supervised visits

with J.W. again became sporadic.




       2
         Mother testified that she was living in her sister’s home in Eagle Rock, Virginia at the
time of the trial court termination hearing and that her sister planned to move to Roanoke,
Virginia.
       3
           J.W.’s father was convicted of abduction, and sentenced to a term of incarceration.

                                                -4-
          On September 11, 2006, July 26, 2007, and March 10, 2008, mother tested positive for

marijuana. In addition, she failed to appear for drug screens on March 5, 2007 and May 1,

2008. 4

          Upon referral by DSS, Thornburgh performed a psychological evaluation of mother on

September 20, 2006, in order to assess mother’s parenting capacity and current psychological

status. Mother presented with a depressed mood, flat affect, and as severely mentally ill with

only minor insight into her mental illness. Mother reported to Thornburgh a history of verbal,

physical, and emotional abuse by her father. Mother acknowledged she started using marijuana

at a young age and continued to do so consistently since that time. Mother admitted having used

cocaine and methamphetamines. Mother reported that she had been diagnosed with bipolar

disorder, for which she had been prescribed medication, but that she stopped taking it because

she did not think it was helpful. 5 Mother admitted having learning problems that have impeded

her ability to understand written material as an adult. She admitted twice attempting suicide as a

teenager, and a history of domestic disputes between her and J.W.’s father, which resulted in her

serving weekend jail time. Thornburgh testified in her May 14, 2008 deposition, which was

admitted into evidence at the trial court termination hearing, that even though mother reported

she had been taking her medications at the time of the September 2006 evaluation, mother

continued to be severely mentally ill.

          Thornburgh diagnosed mother with somatization disorder, bipolar disorder, borderline

personality disorder, and cannabis dependency. Thornburgh opined that mother’s life shows she


          4
          At the trial court termination hearing, mother denied having a substance abuse problem
or that she would benefit from substance abuse treatment, asserting that she had not used
marijuana in the three months since the last court date.
          5
         On cross-examination at the trial court termination hearing, mother claimed that she had
been taking her medications for bipolar disorder and anxiety for approximately six to seven
months.
                                               -5-
is an individual with a pattern of chronic psychological maladjustment and, as such, is not able to

adequately provide parental structure for J.W. Thornburgh further opined that mother’s

emotional instability, haphazard thinking, unpredictable behaviors, and self-centeredness are

“detrimental when it comes to raising a child.” Given the chronic nature of mother’s

psychological problems, Thornburgh opined that she would not anticipate that any of mother’s

psychological conditions would resolve themselves to the point that she would be able to parent

in the “reasonable near future.” Thornburgh recommended that mother attend all classes ordered

by the court, that she be required to display paperwork demonstrating her compliance with

medications, that she be ordered to engage in individual therapy, that she participate in education

and treatment for individuals with borderline personality disorder, that she participate in random

drug screens, and that she find stable housing and display adequate housekeeping skills.

However, Thornburgh opined that even if mother complied with each of those recommendations,

mother’s mental health would still prevent her from adequately parenting J.W. Thornburgh

further opined that even with therapy, mother would still remain significantly mentally ill.

       At the trial court termination hearing, mother asserted that her nineteen-year-old sister,

who also has a young child, would assist mother in caring for J.W. if he was returned to her.

When confronted with the fact that she had previously stated that her sister planned to move to

Roanoke, mother stated that mother’s boyfriend of eight months would move in with her if her

sister moved.

       J.W. is thriving in his foster care placement and is meeting all developmental milestones.

He is gaining weight and language skills. He is currently placed in a foster care home with his

younger brother, who was removed from mother’s care in January 2008.

       Based upon this record, we find no error in the trial court’s determination that DSS

proved by clear and convincing evidence that termination of mother’s parental rights is in J.W.’s

                                               -6-
best interests and that “[i]t is not reasonably likely that the conditions which resulted in [J.W.’s]

neglect or abuse can be substantially corrected or eliminated so as to allow the child’s safe return

to [mother] within a reasonable period of time.” Code § 16.1-283(B)(2). DSS’s evidence was

sufficient to clearly and convincingly prove that mother is “suffering from a mental or emotional

illness or mental deficiency of such severity that there is no reasonable expectation that [she] will

be able to undertake responsibility for the care needed by [J.W.] in accordance with [his] age and

stage of development.” Code § 16.1-283(B)(2)(a). 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 [her] responsibilities.” 6 Kaywood v. Halifax County Dep’t of Soc.

Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990).

       In summary, clear and convincing evidence proved termination of mother’s residual

parental rights was in J.W.’s best interests, and DSS satisfied the statutory requirements of Code

§ 16.1-283(B) necessary to support such termination.

       For these reasons, we affirm the trial court’s decision.

                                                                                            Affirmed.




       6
         Since J.W.’s birth on February 14, 2006, he has been in mother’s care for approximately
five and one-half months, ending on August 1, 2006, when he was removed from mother’s care.
At the time of the trial court termination hearing on June 13, 2008, J.W. had been in foster care
for approximately twenty-two and one-half months.
                                                 -7-
