                        COURT OF APPEALS OF VIRGINIA


Present:   Judges Elder, Bumgardner and Lemons


PAULA COOK
                                             MEMORANDUM OPINION *
v.   Record No. 1385-99-2                        PER CURIAM
                                                MARCH 7, 2000
PETERSBURG DEPARTMENT OF SOCIAL SERVICES


           FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                        James F. D'Alton, Judge

             (Judy L. August, on brief), for appellant.
             Appellant submitting on brief.

             (Joan M. O'Donnell, on brief), for appellee.
             Appellee submitting on brief.


     Paula Cook appeals the decision of the circuit court

terminating her parental rights to her children.    On appeal, Cook

contends that the trial court erred by (1) failing to find that

Cook's minor children were of an age of discretion and failing to

consider their wishes concerning the termination of her parental

rights; (2) considering the recommendation of the guardian ad

litem; (3) denying Cook due process by failing to hold the

termination hearing within ninety days of the perfecting of the

appeal, as required under Code § 16.1-296(D); and (4) finding that

clear and convincing evidence supported the termination of her

parental rights.    Upon reviewing the record and briefs of the


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
parties, we conclude that this appeal is without merit.

Accordingly, we affirm the decision of the trial court.

      On appeal, under familiar principles, we view the evidence

and all reasonable inferences in the light most favorable to the

Petersburg Department of Social Services (DSS), the party

prevailing below.   See Martin v. Pittsylvania County Dep't of

Social Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986).

"Where, as here, the court hears the evidence ore tenus, its

finding is entitled to great weight and will not be disturbed on

appeal unless plainly wrong or without evidence to support it."

Id.   "In matters of a child's welfare, trial courts are vested

with broad discretion in making the decisions necessary to guard

and to foster a child's best interests."   Logan v. Fairfax County

Dep't of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463

(1991) (citations omitted).

           When addressing matters concerning a child,
           including the termination of a parent's
           residual parental rights, the paramount
           consideration of a trial court is the
           child's best interests. On review, "[a]
           trial court is presumed to have thoroughly
           weighed all the evidence, considered the
           statutory requirements, and made its
           determination based on the child's best
           interests."

Id.




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            Consideration of the Wishes of the Children

     Code § 16.1-283(H) 1 provides:

           [N]otwithstanding any other provisions of
           this section, residual parental rights shall
           not be terminated if it is established that
           the child, if he is fourteen years of age or
           older or otherwise of an age of discretion
           as determined by the court, objects to such
           termination.

Cook contends that her children had reached an age of discretion

and that the trial court erred by failing to consider their

wishes.   We find no merit in this contention.

     All of Cook's five children were under twelve years old at

the time of the circuit court hearing.    "In cases in which the

testimony of a child younger than fourteen is sought, the

determination of whether or not the child has reached an 'age of

discretion' is committed to the sound discretion of the trial

court."   Hawks v. Dinwiddie Dep't of Soc. Servs., 25 Va. App.

247, 253, 487 S.E.2d 285, 288 (1997).    A child has reached the

age of discretion if the evidence proves that he or she is

"sufficiently mature to have intelligent views and wishes on the

subject of the termination proceeding."    Id.   The trial court

questioned each child and determined that none were sufficiently

mature to have reached an age of discretion.     While the eldest

child expressed the desire that Cook's rights not be terminated,

the trial court had the opportunity to speak directly with the


     1
       Following the 1999 amendments, this section is now
codified at Code § 16.1-283(G).

                               - 3 -
child and to assess the maturity displayed in the child's

responses.   The child displayed faulty understanding of the

consequences of the termination of Cook's parental rights, as he

indicated he wanted to see his other siblings, only one of whom

lives with Cook.   The record demonstrates that the younger

siblings were also not mature enough to understand the

ramifications of the termination proceedings.

     "The trial judge is uniquely qualified to appraise the

effect of interrogation in each individual setting, including

psychological and emotional factors.     We are content to leave to

his judicial discretion the methods of approaching and resolving

this ultimate issue."     Deahl v. Winchester Dep't of Soc. Servs.,

224 Va. 664, 676, 299 S.E.2d 863, 869 (1983).    We find no abuse

of discretion in the trial court's assessment of the children's

maturity.

              Recommendation by the Guardian ad Litem

     Cook contends that the trial court erred by considering the

recommendations of the guardian ad litem that termination of her

parental rights was in the best interests of the children.     Cook

quotes the statement of the guardian ad litem that he did not

have to "pay attention to burdens of proof, and presumptions and

rules of evidence, and solely have to be concerned about the

best interest of the kids."    The guardian ad litem was obligated

to ensure that the best interests of the children were

adequately represented.     See Code §§ 16.1-266(A) and 16.1-266.1.

                                 - 4 -
We find no indication that the guardian ad litem failed to

perform these duties.

     Moreover, the decision to terminate Cook's parental rights

was a matter left to the discretion of the trial court.    Even if

the recommendation of the guardian ad litem was tainted, which

we do not find, we find it insufficient grounds to vacate the

court's decision, which it made based upon its assessment of all

the testimony heard ore tenus.

                             Due Process

     Cook contends that she was deprived of her right to due

process under the United States Constitution because her

termination hearing was not held within ninety days of the

perfecting of the appeal from the juvenile and domestic

relations district court, as set out in Code § 16.1-296(D).

"The Supreme Court has repeatedly held that 'the use of "shall,"

in a statute requiring action by a public official, is directory

and not mandatory unless the statute manifests a contrary

intent.'"   Carter v. Ancel, 28 Va. App. 76, 79, 502 S.E.2d 149,

151 (1998); see Jamborsky v. Baskins, 247 Va. 506, 511, 442

S.E.2d 636, 638 (1994).   The children have been in the custody

of DSS since January 1996.   Cook appealed the initial

termination decision of the district court on March 6, 1998.

Her termination hearing before the circuit court was held on

April 12, 1999.   The record contains no explanation for the

delay, although counsel made certain representations before the

                                - 5 -
trial court indicating that attempts to set the hearing earlier

were unsuccessful.   Cook cites no specific harm that she

suffered due to the delay.   "Error which does not injuriously

affect the interest of the party complaining is not reversible."

Jenkins v. Winchester Dep't of Soc. Servs., 12 Va. App. 1178,

1186, 409 S.E.2d 16, 21 (1991).   We find no merit in Cook's

assertion that, under the circumstances of this case, the

failure to hold a hearing within ninety days, without any

showing of harm, requires reversal of the termination orders.

                     Sufficiency of the Evidence

     The trial court ruled that DSS presented clear and

convincing evidence sufficient to meet the statutory

requirements of Code § 16.1-283(C)(2).   That section provides

that a parent's rights to a child placed in foster care may be

terminated if the court finds by clear and convincing evidence

that it is in the child's best interests and that

          [t]he parent . . . without good cause, [has]
          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. Proof that the parent
          . . . without good cause, [has] 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 and within the

                                - 6 -
            time limits or goals set forth in a foster
            care plan filed with the court or any other
            plan jointly designed and agreed to by the
            parent or parents and a public or private
            social, medical, mental health or other
            rehabilitative agency shall constitute prima
            facie evidence of this condition. The court
            shall take into consideration the prior
            efforts of such agencies to rehabilitate the
            parent or parents prior to the placement of
            the child in foster care.

Id.

      DSS began providing services to the family in March 1995,

including services to prevent the removal of the children from

the home.   In January 1996, the children were removed from

Cook's custody due to neglect.    Cook was required under the

foster care plans to have substance abuse and individual

counseling, maintain stable housing and employment, and maintain

regular contact with her children.       Since these five children

came into foster care, Cook moved at least six times, twice due

to eviction.   Cook repeatedly required assistance with food,

clothing, and rent, and maintained sporadic contact with her

children after July 1996.    Cook also repeatedly provided DSS

with inaccurate information concerning her living arrangements

and financial condition.

      The evidence established that Cook completed the substance

abuse counseling and participated in individual counseling,

although her therapist indicated that she repeatedly missed

appointments and demonstrated little commitment to benefiting

from the services offered.

                                 - 7 -
     At the hearing, Cook testified that she now lived with her

fiance in a home for which they paid no rent or utilities in

exchange for her care of the elderly man.     Cook was unable to

say when they moved into the home.      While her fiance indicated

that he loved the children, he admitted that he had never met

them before the hearing.

     The trial court found that DSS proved by clear and

convincing evidence the statutory requirements of Code

§ 16.1-283(C)(2).    Evidence in the record supports that

conclusion.   "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 . . .

responsibilities."    Kaywood v. Halifax County Dep't of Social

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

     Accordingly, the decision of the circuit court is affirmed.

                                                            Affirmed.




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