                               COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Humphreys and Petty
Argued at Richmond, Virginia


KATHY W. DISHER
                                                               MEMORANDUM OPINION * BY
v.     Record No. 1266-09-2                                   JUDGE ROBERT J. HUMPHREYS
                                                                  FEBRUARY 23, 2010
DINWIDDIE COUNTY DEPARTMENT
 OF SOCIAL SERVICES


                    FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
                                Pamela S. Baskervill, Judge

                 George F. Marable, III, for appellant.

                 (Joan M. O’Donnell; Sherry L. Gill, Guardian ad litem for the
                 minor child; Jacobs, Caudill, Gill & Barnes, on brief), for appellee.
                 Appellee and Guardian ad litem submitting on brief.


       Kathy W. Disher (“Disher”) appeals an order of the Circuit Court of Dinwiddie County

(“the circuit court”), terminating her parental rights in her child, K.D. On appeal, Disher

contends that the trial court erred in finding that: (1) Dinwiddie County Department of Social

Services (“DSS”) produced clear and convincing evidence to support the termination of Disher’s

parental rights pursuant to Code § 16.1-283, and (2) Disher, without good cause, had been

unwilling or unable to remedy substantially the conditions which led to or required the

continuation of K.D.’s placement in foster care, within a reasonable period of time. For the

following reasons, we affirm the circuit court. 1



       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         As the parties are fully conversant with the record in this case, and because this
memorandum opinion carries no precedential value, we recite only those facts and incidents of
the proceedings as are necessary to the parties’ understanding of this appeal.
       On May 8, 2009, following a de novo appeal from the Dinwiddie County Juvenile and

Domestic Relations District Court (“JDR court”), the circuit court found that the evidence

presented by DSS was sufficient to support the involuntary termination of Disher’s parental

rights in K.D. In its ruling, the circuit court set forth two, alternative bases for the termination of

Disher’s parental rights. First, the circuit court found:

               [P]ursuant to [] Code § 16.1-283B, that the child was placed in
               foster care as a result of court commitment; that it is in the best
               interests of the child for the [c]ourt to terminate the mother’s
               residual parental rights; that the neglect or abuse suffered by such
               child presented a serious and substantial threat to her life, health or
               development; and that 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 the
               mother within a reasonable period of time. 2

       In the alternative, the circuit court found:

               [P]ursuant to [] Code § 16.1-283C, that the child was placed in
               foster care as a result of court commitment, that it is in the best
               interests of the child for the mother’s residual parental rights to be
               terminated, and that the mother, 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
               the 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.

The circuit court further found that

               [Disher], without good cause, has failed to 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




       2
          The circuit court also found, pursuant to Code § 16.1-283(B)(2)(c), “that the mother,
without good cause, has not responded to or followed through with appropriate, available and
reasonable rehabilitative efforts on the part of social, medical, mental health or other
rehabilitative agencies designed to reduce, eliminate or prevent the neglect or abuse of the child.”
                                                 -2-
               in accordance with her obligations under and within the limits or
               goals set forth in the Foster Care Service Plan filed with the court.3

Thus, the circuit court terminated Disher’s residual parental rights in K.D.

       “‘[T]he rights of parents [in their children] may not be severed lightly.’” M.G. v.

Albemarle County Dep’t of Soc. Servs., 41 Va. App. 170, 187, 583 S.E.2d 761, 769 (2003)

(quoting Ward v. Faw, 219 Va. 1120, 1124, 253 S.E.2d 658, 661 (1979)). Nevertheless, “[w]hen

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.” Logan v. Fairfax

County Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991). Thus, “trial

courts are vested with broad discretion in making the decisions necessary to guard and to foster a

child’s best interests.” Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990).

       In this case, the circuit court terminated Disher’s parental rights pursuant to both Code

§ 16.1-283(B) and Code § 16.1-283(C)(2). “Though we have sometimes blurred the distinctions

between the discrete subsections of Code § 16.1-283,” subsections (B) and (C)(2) “‘set forth

individual bases upon which a petitioner may seek to terminate residual parental rights.’” Toms

v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 269, 616 S.E.2d 765, 771 (2005) (quoting

City of Newport News Dep’t of Soc. Servs. v. Winslow, 40 Va. App. 556, 563, 580 S.E.2d 463,

466 (2003)). The dissimilarity between each subsection “stems from the differing precipitating

events leading to the need to remove the child from the home in the first place.” Id. at 271, 616

S.E.2d at 772. Disher takes issue with the circuit court’s rulings under each subsection. For the

sake of clarity, we will address each of Disher’s arguments in turn.




       3
        In addition, the circuit court found that “there are no relatives known to DSS at this time
who are available and suitable for placement of the child.”

                                                -3-
                                      I. Code § 16.1-283(B)

       Disher contends that the circuit court erred in finding that DSS produced clear and

convincing evidence, under Code § 16.1-283(B), to support the termination of her parental rights

in K.D. Essentially, Disher argues that her daughter’s truancy was not a valid, legal basis for

termination.

       Code § 16.1-283(B) provides, in pertinent part, that:

               The residual parental rights of a parent or parents of a child found
               by the court to be neglected or abused and placed in foster care as
               a result of (i) court commitment; (ii) an entrustment agreement
               entered into by the parent or parents; or (iii) other voluntary
               relinquishment by the parent or parents 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:

               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.

(Emphasis added). As the plain language of the statute makes clear, there are two, threshold

findings that a court must make before terminating the residual parental rights of a parent,

pursuant to Code § 16.1-283(B). First, the child must have been “found by the court to be

neglected or abused.” Id. Second, the child must have been placed in foster care as the result of

either a “(i) court commitment; (ii) an entrustment agreement entered into by the parent or

parents; or (iii) other voluntary relinquishment by the parent or parents.” Id.

       In this case, neither the JDR court nor the circuit court found that K.D. was an abused or

neglected child. In fact, the petitions originally filed with the JDR court, which ultimately led to

                                                -4-
K.D.’s placement in foster care, did not allege that she was an abused or neglected child, but

rather that she was a “child in need of services,” based on her continued absence from school.

As we have previously stated, “[t]he precipitating event of subsection B is a judicial finding of

neglect or abuse.” Toms, 46 Va. App. at 271, 616 S.E.2d at 772. Therefore, absent such a

finding, the circuit court’s termination of Disher’s parental rights in K.D., pursuant to Code

§ 16.1-283(B), was improper, and we need not address the issue further.

                                     II. Code § 16.1-283(C)(2)

       Disher also contends that the circuit court erred in terminating her residual parental rights

pursuant to Code § 16.1-283(C)(2). Disher claims that: (1) she substantially remedied the

conditions, which led to K.D.’s placement in foster care and (2) she had good cause as to why

K.D.’s truancy remained an issue. We disagree.

       Code § 16.1-283(C) allows a court to terminate the residual parental rights of a parent of

a child placed in foster care as a result of a court commitment, if the court finds by clear and

convincing evidence that it is in the best interests of the child and that:

               (2) the 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
               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 and within the 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.

(Emphasis added).
                                                 -5-
       In contrast to subsection (B), a court’s decision to terminate parental rights under Code

§ 16.1-283(C) “hinge[s] not so much on the magnitude of the problem that created the original

danger to the child, but on the demonstrated failure of the parent to make reasonable changes.”

Toms, 46 Va. App. at 271, 616 S.E.2d at 772 (emphasis added). “Considerably more

‘retrospective in nature [than subsection (B)],’ subsection (C) requires the court to determine

whether the parent has been unwilling or unable to remedy the problems during the period in

which he [or she] has been offered rehabilitation services.” Id. Because “‘[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 his [or her] responsibilities,’” M.G., 41 Va. App. at 188,

583 S.E.2d at 769 (quoting Kaywood v. Halifax County Dep’t of Soc. Servs., 10 Va. App. 535,

540, 394 S.E.2d 492, 495 (1990)), subsection (C)(2) allows a parent “a reasonable period of time

not to exceed twelve months,” in which to substantially remedy the conditions that led to their

child’s placement in foster care, Code § 16.1-283(C)(2).

       Contrary to her contention, the evidence in the record demonstrates both that Disher was

unable to substantially remedy the conditions that led to K.D.’s placement in foster care and that

Disher did not live up to her obligations as set forth in the foster care plan filed with the court.

Twice, K.D. was removed from Disher’s home due to her excessive absences from school. The

first time, K.D. was sent to live with her maternal grandmother. A few months later, the JDR

court returned K.D. to Disher’s care, provided that Disher: ensure K.D.’s attendance at school,

participate and cooperate with the Family Assessment and Planning Team, and ensure that K.D.

attends all her medical and mental health appointments. Over the next year, K.D. continued to

be excessively absent from school and stopped seeing her psychiatrist, as previously ordered. As




                                                 -6-
a result, K.D.’s guardian ad litem filed a second CHINS petition on her behalf. 4 On March 30,

2007, K.D. was again removed from Disher’s home and placed in the custody of DSS.

       While K.D. was in foster care, Disher satisfied all that DSS required and appeared to be

moving in the right direction. In fact, DSS was so pleased with Disher’s progress that, in

December of 2007, they decided to return K.D. to her home on a trial basis. However, once K.D.

was back in Disher’s home, the problems continued. DSS soon discovered that K.D. was not

attending school regularly and that Disher had missed several educational planning meetings

concerning K.D. When DSS went to Disher’s home to investigate, they discovered K.D. there,

rather than at school. In addition, DSS learned that K.D.’s older brother was again living in

Disher’s home, in violation of Disher’s obligations set forth in the foster care plan and the child

protective order. 5 At that point, K.D. was removed from Disher’s home for a third time.

       Based on the evidence in the record, we hold that the circuit court had sufficient factual

grounds to support its finding that Disher,

                 without good cause, has failed or been unable to make substantial
                 progress towards elimination of the conditions which led to or
                 required continuation of [K.D.’s] foster care placement in
                 accordance with her obligations under and within the time limits or
                 goals set forth in the foster care service plan filed with the court.

Thus, we affirm the circuit court’s decision to terminate Disher’s parental rights pursuant to

Code § 16.1-283(C)(2).




       4
           A “CHINS petition” is a petition alleging a child in need of services.
       5
         Evidence in the record demonstrated that K.D.’s seventeen-year-old brother suffers
from “anger issues,” and reportedly argues, curses and puts holes in the walls of the family
home. He has been diagnosed with ADHD and Intermittent Explosive Disorder. In the child
protective order filed with the court, Disher was not to allow K.D. to have any contact with her
older brother unless authorized by DSS.
                                                -7-
                                            Conclusion

       For the foregoing reasons, we hold that the circuit court erred in terminating Disher’s

residual parental rights pursuant to Code § 16.1-283(B). However, because the circuit court’s

alternative ruling, terminating Disher’s parental rights pursuant to Code § 16.1-283(C)(2), was

proper, we affirm the circuit court’s termination of Disher’s parental rights.

                                                                                        Affirmed.




                                                -8-
