                                COURT OF APPEALS OF VIRGINIA


Present: Judges Kelsey, Petty and Senior Judge Bumgardner


FLORINDA PEREZ
                                                                  MEMORANDUM OPINION *
v.     Record No. 1644-09-4                                           PER CURIAM
                                                                    FEBRUARY 16, 2010
FAIRFAX COUNTY DEPARTMENT
 OF FAMILY SERVICES


                      FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                 Marcus D. Williams, Judge

                 (John B. Jacob, Jr., on brief), for appellant.

                 (David P. Bobzien, County Attorney; Peter D. Andreoli, Jr., Deputy
                 County Attorney; Deborah C. Laird, Assistant County Attorney, on
                 brief), for appellee.

                 (Michael S. Arif; Martin, Arif & Greene, PLC, on brief), Guardian
                 ad litem for the minor child.


       Florinda Perez (mother) appeals the trial court’s order terminating her parental rights to

her child, O.R. She contends the Fairfax County Department of Family Services (FDFS) failed

to present sufficient evidence to prove she was unable or unwilling to remedy the conditions

which prompted the removal of her child. Upon reviewing the record and briefs of the parties,

we conclude that this appeal is without merit. Accordingly, we summarily affirm the decision of

the trial court. See Rule 5A:27.

                                            BACKGROUND

       On appeal, we view the evidence in the “‘light most favorable’ to the prevailing party in

the circuit court and grant to that party the benefit of ‘all reasonable inferences fairly deducible


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
therefrom.’” Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 262, 616 S.E.2d 765, 767

(2005) (quoting Logan v. Fairfax County Dep’t of Human Dev., 13 Va. App. 123, 128, 409

S.E.2d 460, 463 (1991)).

       FDFS first became involved with mother in 2000. Then, FDFS provided services to

mother, Juan Rodriguez (father), and an older child (A.R.), who died a short time later from

accidental poisoning. In August 2005, FDFS “reopened” mother’s case “due to concerns of

physical neglect [of the children 1 ] and the lack of cooperation” by mother and father in caring

for the children. The court ordered that the family receive a number of services “including home

based counseling for the entire family,” and “mental health evaluations for” mother and O.R.

       Daniel Figg was mother’s ongoing social worker beginning in the fall of 2005. On

December 20, 2005, the juvenile and domestic relations district court (juvenile court) issued a

protective order because of FDFS’s concerns about mother’s lack of supervision. The court

ordered that O.R. not be left alone with mother and that mother send O.R. to daycare five days

per week.

       Mother was tested on January 13, 2006, diagnosed with major depression, and prescribed

an anti-depressant. FDFS provided services to mother “to try to keep her children in the home.”

Figg reported that FDFS provided the following “wraparound services” to the family since

August 2005:

               [A]ssistance with prescriptions, transportation to doctor’s
               appointments and court-ordered evaluations, weekly home visits
               with both parents, and continued funding for intensive home-based
               counseling at the rate of eight hours per week. Throughout this
               time, this Social Worker and the home-based provider have
               counseled the parents regarding the children’s needs. Both parents
               were given advice regarding teamwork, communication, and stress


       1
        Although this appeal focuses on the termination of mother’s parental rights to O.R.,
mother also has a younger child, E.R., who is not the subject of this appeal.

                                                -2-
               management. They were also taught techniques for managing the
               children’s behaviors.

       FDFS learned in early March 2006 that mother had beaten then five-year-old O.R. with a

belt, so Figg prepared an affidavit, requesting an emergency removal order. At the time of the

abuse, mother was not supposed to be alone with the children pursuant to the December 2005

order. Moreover, parent evaluations disclosed that mother abused alcohol and father regularly

abused cocaine. In his affidavit for removal, Figg requested that O.R. and his brother be

removed for their safety and to protect them from serious risk of further harm. The trial court

found by a preponderance of the evidence that O.R. was “physically abused” and granted the

emergency removal request. As a result, FDFS placed O.R. and his younger brother in a

therapeutic foster home.

       On May 11, 2006, FDFS filed a Foster Care Service Plan with a goal of “Return Home.”

In addition to other services provided, the plan required mother to complete psychological and

neuropsychological evaluations, follow through with all recommendations, demonstrate an

understanding of O.R.’s specific needs, develop a plan to address his special needs, and

participate in regular parental visitation with O.R. and his brother. Mother was also required to

maintain stable and adequate housing, financially care for the children’s needs, demonstrate

effective parenting, understand the effects of abuse and neglect on the children, establish

structure and boundaries, be consistent with the children, complete a parent-child assessment,

and follow through with all recommendations.

       Clinical psychologist Dr. Rocio Lopez tested and evaluated mother in May 2006.

Dr. Lopez administered a battery of cognitive, academic, neuropsychological, and emotional

tests. Mother performed poorly and tested in the range of mild mental retardation. Emotional

tests showed mother suffered from major depression. Dr. Lopez reported that mother would not



                                               -3-
acknowledge O.R.’s special problems and needs and opined that such denials made it difficult

for mother to understand and care for O.R.

       In an October 16, 2006 Foster Care Service Plan Review, FDFS reported that mother’s

parenting skills “showed important deficits” in that she lacked the ability to organize and

structure O.R.’s behavior, and she had difficulty acting as an authority figure and in establishing

safe boundaries for O.R. Moreover, FDFS reported that mother “continues to be unemployed

and she exhibited poor parenting skills during weekly visitation.”

       Clinical psychologist Gloria Morote tested O.R. in November and December 2006.

During testing, O.R. exhibited oppositional behavior, restlessness, impulsiveness, and

aggression, and Dr. Morote had to constantly redirect his focus and provide structure. Although

test results indicated O.R. had an extremely low IQ, Dr. Morote did not find him “mentally

deficient.” She opined that the lack of verbal skills could be attributed to environmental factors.

Moreover, O.R.’s score was reduced due to “his significant behavioral, emotional and attentional

deficits.” His non-verbal skills were much stronger than his verbal skills, and he had “very poor

attention, verbal reasoning and visuomotor processing functions.” Dr. Morote also opined that

O.R. “is struggling with depression and anxiety.”

       Social worker Vicky Ramos-Ruiz worked with mother and O.R. and was present during

their visitations from 2006 until March 2008. Ramos-Ruiz explained that mother failed to

engage O.R. in play or properly supervise him during visits. Mother would allow him to go to

the bathroom by himself contrary to FDFS instructions not to do so, and when O.R. would run

out of the visitation room, mother would not retrieve him, even after Ramos-Ruiz advised her to

do so. Mother refused to acknowledge O.R.’s behavior and cognitive problems, insisting that

placement in foster care caused his behaviors and deficits.




                                               -4-
       On August 17, 2007, seventeen months after O.R.’s emergency removal, FDFS filed

another Foster Care Service Plan. Part A of this plan changed the goal to adoption. FDFS

explained that mother has been unwilling or unable to implement behavior management

strategies FDFS introduced to her. Moreover mother “did not work and has limited employable

skills.” FDFS reported that O.R. had “little impulse control,” had difficulty with rules and

structure, was physically delayed, was developmentally delayed, functioned poorly in school,

sought negative attention at home, and required special education placement. In Part B of the

service plan, FDFS reported that mother and father “did not make progress to achieve family

reunification.” They were unable to safely care for and meet O.R.’s special needs. FDFS

explored placing O.R. with relatives, but none were appropriate candidates. Therefore, “[a]n

appropriate adoptive home [was deemed] the only viable option.”

       Jennifer Roberts is an adoption social worker and began working with mother and O.R.

after the change in goal to adoption. She explained that O.R.’s negative behaviors escalated at

that time, and he needed to be placed in higher levels of care to keep him safe and to provide

“more structure, more supervision and more services.”

       After reviewing the evidence and considering closing argument, the trial court found that

O.R. “is a seriously disturbed child with clinically relevant scores for attentional, oppositional

and conduct disorders.” He has “severe behavioral, emotional and cognitive developmental

problems” that require special services. Although mother had been provided services and

resources for almost three years, the trial court found she “has not even come close to”

remedying the problems that brought O.R. into foster care and ruled that “mother has been

unable or unwilling to remedy substantially the conditions which led to [O.R.’s] placement [with

DSFS].” As a result, the trial court terminated mother’s parental rights pursuant to Code

§ 16.1-283(C)(2).

                                                -5-
                                           DISCUSSION

       Mother argues she “remedied substantially the conditions that led [O.R.] to be placed in

foster care,” and “is ready for [O.R.] to be returned to her.” She asserts that there was

insufficient clear and convincing evidence that termination was in O.R.’s best interests. 2

       The residual parental rights of a parent may be terminated if the trial court finds, based

upon clear and convincing evidence, that it is in the best interests of the child and that

               [t]he parent or parents, without good cause, have been unwilling or
               unable within a reasonable period of time not to exceed twelve
               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.

Code § 16.1-283(C)(2).

       O.R. was in foster care from March 2006 until the hearing in May 2009. During that

time, FDFS provided extensive services and resources to mother and O.R. The evidence showed

that mother suffered from major depression, mild mental retardation, and was a recovering

alcoholic. At the time of trial, mother had no money and no transportation and had been living

for three months in a friend’s trailer. There was no bed for a child, and mother was unable to

provide details as to her employment status or to demonstrate how she would provide for O.R.




       2
          FDSS argues mother failed to preserve her argument that there was insufficient
evidence to support the trial court’s decision to terminate. It contends mother failed to include
this argument as an objection in the final order and she failed to include in the appendix the May
21, 2009 transcript containing closing arguments and the trial court’s ruling.
        The record on appeal contains the May 21, 2009 transcript, therefore, we are able to
review it as part of the record. A review of page 28 of that transcript reflects that mother argued
that FDFS “has not met its burden of clear and convincing evidence, and it is not in the best
interest to terminate the rights between [O.R.] and his mother.” Accordingly, we address the
sufficiency of the evidence to support the trial court’s decision.
                                                 -6-
       O.R. has severe special needs, as well, and the evidence demonstrated that, despite many

years of services provided to mother, she would never be able to safely and consistently provide

the structure, supervision, guidance or care O.R. requires.

       We cannot say that the trial court erred in finding that FDFS presented clear and

convincing evidence satisfying the statutory requirements of Code § 16.1-283(C)(2) and proving

that it was in the best interests of the child to terminate mother’s parental rights. Accordingly, the

decision of the trial court is summarily affirmed. Rule 5A:27.


                                                                                             Affirmed.




                                                 -7-
