                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Fitzpatrick and Annunziata
Argued at Alexandria, Virginia


BONNIE PRUDEN
                                          MEMORANDUM OPINION * BY
v.         Record No. 0949-96-4         JUDGE ROSEMARIE ANNUNZIATA
                                             JANUARY 7, 1997
FAIRFAX COUNTY DEPARTMENT
 OF HUMAN DEVELOPMENT, ET AL.


            FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      F. Bruce Bach, Judge
          Dorathea J. Peters (Peters & Mullins, on
          brief), for appellant.

          Dennis R. Bates, Senior Assistant County
          Attorney (David P. Bobzien, County Attorney;
          Robert Lyndon Howell, Deputy County Attorney,
          on brief), for appellee Fairfax County
          Department of Human Development.

          Wayne D. Berthelsen (Freeman & Berthelsen, on
          brief), Guardian ad litem for appellee
          Russell Pruden.



     Bonnie Pruden (mother) appeals from an order of the circuit

court terminating her residual parental rights pursuant to Code

§ 16.1-283(B).   We conclude that the circuit court's findings are

not supported by clear and convincing evidence and, therefore,

reverse its decision and remand the case.

                                  I.

     The mother in this case is an alcoholic.     She continued to

drink on a daily basis through the early weeks of her pregnancy,

until she realized she was pregnant.   In March 1990, mother gave
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
birth to a son (child).    Her drinking resumed in August 1990 and

continued until July 1991, when she entered a detoxification

program.   After relapsing, mother entered the program twice more

during the Fall of 1991.    During that time, mother was in an

abusive relationship with her husband which exposed the child to

domestic violence.

     In December 1991, the Fairfax County Department of Human

Development (county), removed the child from his parents and

placed him in foster care, citing continuing domestic violence

and substance abuse by the child's parents as its reasons.     At

that time, the Fairfax County J&DR Court found the child had been

"abused and neglected."    The county prepared a foster care

service plan, the goal of which was to return the child to his

parents by December 1993.   The plan directed the child's parents

to cooperate with alcohol and drug services and mental health

evaluations.   In June 1992, mother and her husband separated.
     Mother initially sought treatment from the Fairfax County

Alcohol and Drug Services, and, in January 1992, she entered a

two-week, residential treatment program.   She subsequently

entered an eight-week treatment program and, following that,

entered a treatment program at the Northwest Mental Health Center

(Northwest).   Mother received individual counselling at Northwest

from March 1992 through August 1992 and participated in group

therapy from June 1992 until March 1993.   During that period,

there were some signs that mother had relapsed; however, none of




                                - 2 -
mother's urine screens evidenced alcohol use.   The record shows

mother was not always amenable to being monitored.

     By April 1993, mother was asked to leave the Northwest

therapy group because she had "gained maximum benefit" from it.

Her attitude toward monitoring was not consistent with the

program objectives, and her presence was viewed as

disadvantageous to other members.

     Nonetheless, by June 1993, the county was sufficiently

satisfied with mother's progress to return physical custody of

the child to her.   Legal custody was restored in December 1993.

Thereafter, except for sporadic Alcoholic's Anonymous (AA)

meetings, mother did not continue treatment.
     In March 1994, mother relapsed.   On her third day of

drinking, mother left the child alone while she went to the store

to purchase more beer.   She was intoxicated when Child Protective

Services arrived soon after her return.

     The county removed the child from mother's care, and, on

April 4, 1994, the J&DR court again found that the child had been

"abused and neglected" by mother.   By May 27, 1994, the county

had devised a new foster care service plan, this time with the

goal of adoption.   Following a hearing on December 22, 1994, the

J&DR court terminated parental rights of both mother and the

child's father.   Mother has had no contact with the child since

that time.   Both parents appealed, and de novo hearings were

conducted in the circuit court in May 1995.



                               - 3 -
     In May 1994, mother began treatment at the Recovery Women's

Center, in which she continued to participate at the time of the

circuit court hearing.       At the hearing, mother admitted

responsibility for her alcoholism and stated that she had not

taken a drink since her March 1994 relapse.         Likewise, Kelley

Traver, the county's foster care social worker assigned to the

case, and mother's counsellors at the Recovery Women's Center,

Jean Larkin, Roberta Severo and Judith Leanes, all testified that

mother had fully complied with the treatment program and that

mother had shown no further sign of relapse.
     Leanes further testified concerning the strengths and

weakness she perceived in mother:
               What I have notice[d] about [mother], is
          [that she] has remained abstinent for more
          than a year. [She] has consistently attended
          all required meetings, she has been
          incredibly compliant, she didn't drink during
          some real stressful periods in her life, she
          didn't have a relapse at that point, and I
          think that that's a strength.

                 *       *      *    *      *   *     *

          [She] is also very willing to listen to
          feedback, which was really difficult for her
          to do in the beginning. She would be very
          angry and defensive, that doesn't happen
          anymore. If she does get angry, she goes
          away, thinks about it, and she comes back,
          but she doesn't drink over it.

                 *       *      *    *      *   *     *

          [Mother], also has gone to the Women's Center
          on her own, and taken the Strom inventory
          test, to find out about career options and
          choices that are available to her, and
          anything that has been suggested to her, she
          tries whole heartedly. If she has questions,



                                    - 4 -
           if she has problems, if she feels like she
           doesn't understand, she has the ability to
           ask. She also has the ability to admit when
           she's wrong, and I think that that's a really
           good strength.

                  *    *    *    *      *    *    *

           [Her] limitations are that [she] is an
           alcoholic, and [she] may someday drink again,
           [she] may not someday drink again. A
           limitation for [mother] might be her thoughts
           where she gets really kind of compulsive
           like, or obsessive, where she needs to kind
           of go back and check, and make sure that she
           has everything done, and that can be a
           limitation. She always needs to double check
           herself.

Leanes further testified that mother's short term goals included

completing treatment at the Recovery Women's Center and that her

long term goals included schooling and living with her son.

Mother was expected to complete her treatment at the Recovery

Women's Center in July 1995.

     Pam Wright, a mental health therapist for Arlington County,

testified as an expert in substance abuse and as mother's sponsor

at AA.   Wright testified that mother had attended AA meetings at

least five or six times per week for the preceding twelve months

and participated in service work for the group.       Wright described

how she and mother worked to create a plan to keep mother sober

and that mother had relied on her and abided by her suggestions

for successfully implementing the plan.     Specifically, Wright

testified as follows:
          [Mother] is working very hard at creating a
          new life for herself. She is reexamining
          what kind of work she wants to do, what are
          her professional strengths, what kind of



                                - 5 -
          future she would like to have. She has done
          vocational testing. She has tak[en] the
          Strom Interest Inventory. She has looked at
          career planning. She has done a lot of
          things.

                  *     *    *    *      *   *   *

          [Mother], emotionally, is much more stable.
          When she feels, -- I guess the thing that I
          would say most about [mother] . . . is when
          she feels jeopardized, she is no longer
          afraid to ask for help, and that's a very
          important part of recovery, is to have that
          humility, to say I need help.

     Nancy Colletta, a clinical psychologist who specializes with

children, testified as an expert witness for the county.      Dr.

Colletta had evaluated the child in July 1994 and, based on her

evaluation, stated that the child evidenced characteristics of

Fetal Alcohol Syndrome (FAS), a condition which would have long

term consequences.    She also observed emotional problems in the

child, including distrust of adults, fear of abandonment, anger

at both his mother and foster mother because of his feelings of

abandonment, and preoccupation with family violence.    She

testified that the child was delayed in both language and gross

motor skills.

     Because of the child's special needs, Dr. Colletta believed

that the child's provider would have to provide a stable,

predictable environment with clear limits and constant

discipline.   Dr. Colletta evaluated mother for two hours, during

which time she was the first person to inform mother that the

child suffered from FAS.    Dr. Colletta testified that mother




                                 - 6 -
denied responsibility for the child's problems.       Following her

evaluation of mother, Dr. Colletta observed mother interact with

the child.    At the hearing, Dr. Colletta expressed concern about

mother's ability to meet the child's special needs.      She was

especially concerned that mother did not recognize the child's

problems.    Dr. Colletta recommended that the child be placed in a

permanent home.

     At the close of the evidence, the court deferred decision,

stating that
          because of [mother's] efforts in trying to
          rehabilitate herself, and become a sober
          mother for this child, the Court wants, and
          hopefully will find that there is additional
          evidence that she will remain sober in the
          future. . . . [Therefore,] it is my intention
          [albeit reluctantly] to continue this case
          for ultimate decision for approximately four
          months. During which time, hopefully, Mrs.
          Pruden will at least complete the treatment
          that she is in at this time, recognizing as
          most of these professionals suggest, that
          alcoholics remain in treatment the rest of
          their life.

                    *    *    *     *     *   *   *

             I would ask counsel to prepare an appropriate
             order, and let the record reflect, as well as
             the order, that if [mother] comes through the
             next four months without any recognizable
             problems, the Court, this Judge at least,
             would recommend that the petition be
             dismissed, and the child returned to you,
             after an arrangement of reasonable
             visitation.


(Emphasis added.)

     The matter was continued in the circuit court, ultimately

until December 19, 1995, nearly seven months later, when it was



                                  - 7 -
taken up by a different judge.      At that point, mother had not

seen her child in nearly one year.        Following the hearing, the

court ordered the termination of both parents' parental rights. 1

     The circuit court found that the county had established a

prima facie case pursuant to Code § 16.1-283(B)(2)(b), by proving

that mother's proper parental ability had been seriously impaired

by her alcoholism and that, without good cause, she had failed to

respond to or follow through with recommended and available

treatment which could have improved her capacity for adequate

parental functioning.      We read the court's letter opinion to make

an alternative finding as well: that, even in the absence of
prima facie evidence established pursuant to Code

§ 16.1-283(B)(2)(b), the county had met its burden, pursuant to

Code § 16.1-283(B)(2), of proving that it was "not reasonably

likely that the conditions which resulted in . . . neglect or

abuse [could] be substantially corrected or eliminated so as to

allow the child's safe return . . . within a reasonable period of
         2
time."       We conclude that clear and convincing evidence fails to

support the court's findings.
     1
      The child's father did not appeal.
     2
      The court concluded that mother "has not demonstrated her
ability to substantially correct within a reasonable period of
time the conditions that led to [the child's] neglect," having
found (1) mother had a long history of relapsing alcohol
problems; (2) as recently as September 1995, mother displayed
"relapse symptoms"; (3) mother's condition is extremely fragile,
and although she has maintained sobriety for a few months, she
has done so without the burden of caring for a severely
disadvantaged and troubled child; and (4) mother would be unable



                                  - 8 -
                                  II.

     An order terminating parental rights permanently severs the

parent-child relationship, rendering each a "'legal stranger'" to

the other.     E.g., Edwards v. County of Arlington, 5 Va. App. 294,

305, 361 S.E.2d 644, 650 (1987) (quoting Shank v. Department of

Social Services, 217 Va. 506, 509, 230 S.E.2d 454, 457 (1976)).

It is a "grave, drastic" action, to be accomplished in "rare"

circumstances, id. at 305-06, 361 S.E.2d at 650 (quoting Lowe v.
Department of Public Welfare, 231 Va. 277, 280, 343 S.E.2d 70, 72

(1986); Weaver v. Roanoke Department of Human Resources, 220 Va.

921, 926, 265 S.E.2d 692, 695 (1980)), and in contemplation of

"'the use, where possible, of alternatives less drastic . . . .'"

 Id. at 312, 361 S.E.2d at 654 (quoting Knox v. Lynchburg

Division of Social Services, 223 Va. 213, 223, 288 S.E.2d 399,

404 (1982)).    In Edwards, we addressed alternatives, including

"[t]hose remedies, which merely effect `a transitory change in

the child's custodial status . . . without affecting other

parental rights,' [which] are specifically `designed for the case

of a parent who shows extenuating circumstances and demonstrates

[her] potential for rehabilitation as a fit parent.'"    5 Va. App.

at 312-14, 361 S.E.2d at 654-55 (quoting Shank, 217 Va. at 509,
230 S.E.2d at 456); see also Code § 16.1-278.2.    We also

addressed, as an alternative, the use of the trial court's

discretion to continue a case on its docket "in order to allow
(..continued)
to shoulder such a burden without substantial risk of relapse.




                                 - 9 -
further services to be rendered to a parent in the hope that

termination of the parent's residual parental rights would not be

necessary."    Id. at 314, 361 S.E.2d at 655.

     While the child's best interest is the "paramount concern,"

e.g., Wright v. Alexandria Div. of Social Servs., 16 Va. App.

821, 827, 433 S.E.2d 500, 503 (1993), cert. denied, 115 S. Ct.

651 (1994), the rights and interests of the parent must also be

protected.    Id.; Radar v. Montgomery County, 5 Va. App. 523,
526-28, 365 S.E.2d 234, 235-37 (1988).   A balance of these

interests is struck by utilizing the procedural safeguards of

Code § 16.1-283.    Edwards, 5 Va. App. at 306, 361 S.E.2d at 650.

     Before residual parental rights can be terminated under Code

§ 16.1-283(B), the party seeking termination must prove by clear

and convincing evidence that (1) termination of parental rights

"is in the best interests of the child"; (2) the neglect or abuse

suffered by the child presents "a serious and substantial threat

to his life, health or development" and (3) 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 . . . within a reasonable

period of time."

     The third factor may be established by a prima facie showing
that "the parent . . . [has] habitually abused or [is] addicted

to intoxicating liquors . . . to the extent that proper parental

ability has been seriously impaired and the parent, without good




                               - 10 -
cause, has not responded to or followed through with recommended

and available treatment which could have improved the capacity

for adequate parental functioning."    Code § 16.1-283(B)(2)(b)

(emphasis added).   Where the prima facie case is overcome, the

party moving for termination is put to the burden of proving the

factors listed in Code § 16.1-283(B)(2).    Banes v. Department of

Social Servs., 1 Va. App. 463, 466, 339 S.E.2d 902, 904 (1986)

(prima facie case overcome where evidence shows parent not

offered or provided services by the social agency designed to

remedy the conditions leading to the foster care placement);
Harris v. Lynchburg Div. Soc. Serv., 223 Va. 235, 243, 288 S.E.2d

410, 415 (1982) (same).

     In the present case, the record makes clear that mother's

drinking was the relevant condition which resulted in the child's

neglect and abuse and which the county had to prove, by clear and

convincing evidence, could not be substantially corrected or

eliminated so as to allow the child's safe return to his mother

within a reasonable period of time.    Although the child was

removed initially due to his exposure to domestic violence as

well as substance abuse by his parents, mother separated from her

husband in June 1992, and the record reveals nothing to indicate

that the child's further exposure to domestic violence was a

concern.   Furthermore, the record reveals nothing to indicate

that mother's parenting skills, post-removal visitation record,

employment status, or housing conditions figured into the



                              - 11 -
county's decision to remove the child and seek termination of

mother's parental rights, except to the extent that mother's

drinking affected those factors.   Indeed, Kelley Traver, the

county's case worker assigned to the matter, testified that the

county refused to allow mother to take the child to parenting

classes, noting that the county's concern was mother's drinking,

not her parenting skills.   Moreover, the foster care service plan

required mother to follow any and all recommended substance abuse

treatment and refrain from any use of alcohol.   When mother asked

Traver what she should be doing following the child's removal,

Traver told her she needed to comply with treatment for her

alcoholism.   Although it can be reasonably inferred that mother's

drinking impaired her parenting ability, the county clearly

anticipated that cessation of mother's drinking would cure her

impaired parenting.    Had the county considered otherwise, it

would have been required to provide services to enable mother to

remedy her impairment.    See, e.g., Banes, 1 Va. App. at 466, 339

S.E.2d at 904.

     No evidence supports the circuit court's finding that the

county established a prima facie case pursuant to Code
§ 16.1-283(B)(2)(b).   Even assuming the evidence supports a

finding that mother's parenting ability was seriously impaired by

her alcoholism, the record is devoid of evidence that she failed

to respond or follow through with recommended and available

treatment which could have improved her capacity for adequate




                               - 12 -
parental functioning.   The evidence that mother fully complied

with and completed her treatment program subsequent to the

child's removal is undisputed.   The evidence shows that mother

responded to and followed through with treatment programs prior

to her relapse as well.   Furthermore, there is no evidence that

mother took a drink subsequent to her March 1994 relapse, nearly

twenty-one months prior to the end of the hearing.

     Moreover, clear and convincing evidence does not support the

circuit court's alternative finding that, even in the absence of

prima facie evidence established pursuant to Code

§ 16.1-283(B)(2)(b), the county met its burden, pursuant to Code

§ 16.1-283(B)(2), of proving that it was "not reasonably likely

that the conditions which resulted in . . . neglect or abuse

[could] be substantially corrected or eliminated so as to allow

the child's safe return . . . within a reasonable period of

time."    To the contrary, the weight of the evidence supports a

finding that mother had substantially corrected or eliminated the

condition, her drinking, which resulted in the child's abuse and

neglect.

     There is no evidence that mother took a drink during the

twenty-one months between her relapse and the circuit court's

ruling.    We disagree with the court's characterization of this

period as a "few" months of sobriety.   Furthermore, the evidence

is undisputed that mother fully complied with her treatment and

everything that the county required of her during that time.    In



                               - 13 -
addition to her treatment at Recovery Women's Center, mother

attended AA meetings nearly every day during those twenty-one

months.    Mother admits that she is an alcoholic and will be for

life.    However, the evidence shows that mother is not likely to

relapse again.    Wright opined that relapse was very unlikely even

with the stress of caring for the child and mother's pending

divorce.    Wright testified that mother had been sober since the

May hearing and that she knew how to avoid relapse when a relapse

warning sign presented itself.    Since the initial hearings in May

1995, mother completed her treatment at Recovery Women's Center,

began individual therapy, continued to attend AA meetings on an

almost daily basis and remained sober.
        Furthermore, the circuit court continued the case following

the first two days of hearings and established mother's continued

sobriety for the proceeding four months and her completion of

treatment at the Recovery Women's Center as conditions for

dismissing the petition.    Such a ruling, in effect, established

the "reasonable period" for mother to substantially correct the

condition which resulted in the finding of abuse and neglect.

        All the evidence shows that mother fulfilled every condition

upon which the circuit court premised its "recommendation" that

the petition be dismissed within the period specified by the

court.    Moreover, there was no indication of relapse during that

time.    The circuit court's reliance on the fact that mother

showed "relapse symptoms" as late as September 1995 is misplaced.




                                - 14 -
The hearing testimony clearly shows that a "relapse warning

sign" does not indicate that relapse will occur.    Rather, the

testimony shows that a "relapse warning sign" is a signal to a

recovering alcoholic to be aware of a condition or circumstance

that had been an impetus to that person's drinking.   By

identifying the sign, a recovering alcoholic is able to take

preventative measures to avoid relapse.   The evidence shows that

identifying relapse warning signs makes relapse less likely to

occur.
     We also find no support for the trial court's finding that

mother's condition is extremely fragile and that she would be

unable to shoulder the burden of raising the child without

substantial risk of relapse.   To the contrary, the testimony of

Judith Leanes, mother's counselor at the Recovery Women's Center

at the time of the initial hearing, and Pam Wright, mother's AA

sponsor, depicts mother as stable, confident and able to

understand when she needs help and from where to get it.   Leanes

and Wright testified that mother had accepted responsibility for

her situation and had set goals for improving it.

     Finally, we find the testimony of the county's expert

witness, Dr. Colletta, unpersuasive on the dispositive issue in

this case.   Initially, we note that Dr. Colletta's opinion

regarding mother's inability to meet the child's needs was based

on one personal interview which lasted two hours.   She based her

opinion, in part, on mother's reaction to her findings with



                               - 15 -
respect to the child.   In context, however, those reactions came

after Dr. Colletta informed mother, for the first time, that her

child suffered from FAS.   Such information, it would later be

revealed, was incorrect.

     Irrespective of the basis for Dr. Colletta's opinion, it is

clear that opinion bears no relationship to mother's drinking.

Dr. Colletta's focus was on the child's "special needs," and she

was concerned that mother could not meet those needs, regardless

of her success in treatment.    However, the issue is not mother's

ability to parent her child notwithstanding her alcoholism.   If

it were, the county failed to offer or provide services to mother

to enable her to remedy that situation and, therefore, the

petition for termination would have to be denied.    See, e.g.,

Banes, 1 Va. App. at 466, 339 S.E.2d at 904.   Rather, the issue

is mother's ability to correct the condition, her drinking, which

led to the child's neglect. 3

     3
      Furthermore, to the extent mother's relationship with the
child had deteriorated while the matter was on appeal in the
circuit court, as suggested by Dr. Colletta, the result was one
created, in good part, by the denial of mother's visitation with
the child during that twelve month period. The quality of
mother's bonding with the child was not the ground for removing
the child at the initiation of the action, and mother exercised
visitation with the child throughout the period she was receiving
treatment. Visitation was terminated upon the grant of the
petition to terminate parental rights by the J&DR court. The
circuit court likewise denied mother's motion for visitation
pending appeal of the termination decision. The attenuation of
the parent-child bond under these circumstances is not
surprising; however, consideration of this "system-created" new
circumstance in deciding to terminate parental rights appears, at
minimum, unjust.



                                - 16 -
     For the reasons stated, the order of the circuit court is

reversed.   The case is remanded, therefore, to the circuit court

for further proceedings not inconsistent with this opinion.

                                            Reversed and remanded.




                              - 17 -
Fitzpatrick, J., dissenting.

     I respectfully dissent and would hold that the evidence,

when considered in the light most favorable to the prevailing

party, is sufficient to meet the requirement of Code

§ 16.1-283(B)(2) that it was "not reasonably likely that the

conditions which resulted in . . . neglect or abuse [could] be

substantially corrected or eliminated so as to allow the child's

safe return . . . within a reasonable period of time."
     This is the classic case of a child who came into foster

care as a toddler because of parental neglect or abuse, and

remains so, six years later.   The evidence established that while

the mother clearly has made progress in attempting to remedy her

dependency on alcohol, it is still uncertain whether she has been

successful.   After an earlier period of sobriety, the Department

attempted a return of the child to her.   She relapsed, put the

child at risk, and a removal was again required.   The trial court

was not required to accept the testimony of mother's expert that

relapse despite "stress" was unlikely.

     In considering all of the evidence, including the demeanor

and credibility of the witnesses, the trial court specifically

weighed the history of relapse and the recent display of "relapse

symptoms."    It observed that the mother was "extremely fragile on

the date of the hearing," that she had "maintained sobriety . . .

without the burden of caring" for her child who has special

needs, and lastly, that it was in the child's best interest that




                               - 18 -
the termination of parental rights be accomplished completely and

expediently.   I would hold that this decision was not clearly

wrong or without evidence to support it.   For these reasons, I

would affirm the trial court.




                                - 19 -
