                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Beales and Athey
UNPUBLISHED


              Argued at Lexington, Virginia


              CARRIE PILENZA
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0034-19-3                                  JUDGE CLIFFORD L. ATHEY, JR.
                                                                                 MARCH 17, 2020
              NELSON COUNTY DEPARTMENT OF
               SOCIAL SERVICES

                                    FROM THE CIRCUIT COURT OF NELSON COUNTY
                                               Michael T. Garrett, Judge

                               Peter S. Frazier for appellant.

                               P. Scott De Bruin; Herbert E. Taylor, III, Guardian ad litem for the
                               minor child (The Law Offices of Herbert E. Taylor, III, PLLC, on
                               brief), for appellee.1


                     Carrie Pilenza (“mother”) appeals a determination by the Circuit Court of Nelson County

              (“circuit court”) terminating her parental rights and placing her daughter, C.P.,2 with Nelson

              County Department of Social Services (“NCDSS”). Mother presents two assignments of error

              on appeal. First, she argues that “[u]nder Spencer v. Commonwealth, 240 Va. 78 (1990) and

              related jurisprudence, the [circuit] court erred by admitting expert testimony from two

              psychologists whose opinions stemmed from their use of unreliable, unscientific, and outmoded


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                       Pursuant to Rule 5A:19(d), the guardian ad litem filed a notice relying on appellee’s
              brief and argued in support of appellee’s position.
                     2
                       To protect the child’s privacy, we use her initials rather than her name. Additionally,
              the record in this case was sealed. In order to appropriately address the assignments of error
              mother raises, this opinion includes portions of the record that were sealed. “To the extent that
              this opinion mentions facts found in the sealed record, we unseal only those specific facts,
              finding them relevant to the decision in this case. The remainder of the previously sealed record
              remains sealed.” Levick v. MacDougall, 294 Va. 283, 288 n.1 (2017).
testing methods.” Mother also contends that the circuit court erred under Code § 16.1-283 “by

terminating [her] parental rights without clear and convincing evidence that she failed to

substantially remedy the circumstances resulting in the child’s abuse, neglect, and/or continued

commitment to foster care.” Upon reviewing the record and briefs of the parties, we conclude

that the circuit court did not err. Accordingly, we affirm the decision of the circuit court.

                                         I. BACKGROUND3

       On June 7, 2017, C.P. came into the care and custody of NCDSS pursuant to an

emergency removal petition. On February 20, 2018, NCDSS sought to terminate the residual

parental rights of mother and C.P.’s father (“father”).4 Mother had been hospitalized for mental

illness, and father had been incarcerated for eluding police and endangering the life of C.P., who

was in the vehicle father was driving when he was arrested for eluding the police.

       The Nelson County Juvenile and Domestic Relations District Court (“JDR court”) heard

the matter on August 27, 2018. Because both mother and father were absent, the JDR court

adjudicated C.P. as abused or neglected and indicated that its finding was based upon C.P. being

“without parental care or guardianship caused by the unreasonable absence or the mental or

physical incapacity of the child’s parent, guardian, legal custodian or other person standing in

loco parentis.” Pursuant to the JDR court’s order, C.P. remained in the care of NCDSS, and both

mother and father appealed the JDR court’s determination for a de novo trial in the circuit court.




       3
        Pursuant to familiar appellate principles, we review the evidence on appeal “in the light
most favorable to the prevailing party below,” here, NCDSS. Logan v. Fairfax Cty. Dep’t of
Human Dev., 13 Va. App. 123, 128 (1991).
       4
        This is a companion case of Christopher Pilenza v. Nelson Cty. Dep’t of Soc. Servs., __
Va. App. __ (2020), also decided this day.
                                             -2-
       On November 26, 2018, during the de novo hearing, mother testified that she and father

married in 2015 and that she knew that father had been previously convicted of felony murder.

C.P. was the first child born of the marriage on December 18, 2016.

       She further testified that on May 21, 2017, the couple had an argument at their home

regarding mother placing C.P. in a moldy bassinet. At some point, father placed C.P. into his

vehicle and drove toward the UVA health center in Charlottesville to obtain a medical evaluation

for C.P. Mother became concerned, among other things, about the six-month-old child not being

in an infant safety seat. Mother then contacted the police, and they pursued father’s vehicle,

which only stopped after police were forced to ram it.

       As a result, police charged father with two felonies—eluding police under Code

§ 46.2-817(B) and endangering the life of a child under Code § 40.1-103. Although C.P. had not

been harmed, upon the child’s return to mother, NCDSS asked mother to sign a safety plan with

the agency, which mother agreed to do.

       Mother had a previous history of panic attacks, anxiety, and postpartum depression. In

fact, on June 7, 2017, mother sought emergency mental health treatment from her primary care

provider, reporting increasing symptoms of postpartum depression and anxiety, along with

(1) abnormal thoughts, (2) struggling to take care of her mental health while caring for C.P.

alone, and (3) having difficulty coping with the stress from father’s recent incarceration.

Specifically, mother had been experiencing thoughts of suicide and thoughts of spanking C.P.

when C.P. would awaken at night crying.

       As a result, mother voluntarily sought inpatient psychiatric treatment, and NCDSS

removed C.P. from her custody and care. Mother was subsequently diagnosed with depression

and generalized anxiety. Upon discharge, mother was instructed to continue outpatient therapy.

As a part of her outpatient therapy, mother regularly attended supervised visitation with C.P.

                                                -3-
NCDSS recommended, and mother also regularly attended, a clinical program called “Raising

Our Children,” where she received training in making better parenting decisions and

appropriately meeting C.P.’s needs.

       During the program, clinician Teresa Bouthillier (“Bouthillier”) observed mother “not

being able to pick up on verbal cues by C.P.” and “not thinking about things like changing her

diaper or making sure her sippy cup was in her diaper bag.” She explained that mother seemed

to comprehend the concepts when she learned them, but that once they moved on to a new

concept, mother would lose concepts she had focused on before. Mother also had difficulty

conceptualizing developmental expectations on a day-to-day basis.

       Mother only “minimally improved,” and her inability to make sound decisions and

recognize dangerous situations remained. For instance, mother decided to place C.P.’s crib

below shelves containing heavy objects and chose to live with others who had prior criminal

charges. In addition, mother still planned to reconcile with father.

       Kelsey Summers (“Summers”) also testified on behalf of NCDSS. She shared

Bouthillier’s concerns, having observed approximately sixty visitations between mother and C.P.

She testified that mother still needed to be reminded to change C.P.’s diaper or feed her a bottle.

She recalled one visitation in which mother had prepared a bottle for C.P. that was too hot. She

recalled another incident in which mother did not react quickly to C.P. choking on a sandwich

and had to be shown how to perform a mouth sweep.

       Summers was also concerned that mother chose to live with Thomas Kenyon, who had a

“criminal record,” including an assault and battery charge. Summers also described the room

mother rented as being within a home filled with clutter and with pictures hanging from floor to

ceiling that Summers feared C.P. might grab and hurt herself. Summers testified that she and




                                                -4-
others from NCDSS had to point out safety concerns like this to mother constantly; it concerned

Summers that mother failed to recognize these dangers.

        Summers also questioned mother’s judgment when mother moved in with her boyfriend,

Matthew Coates (“Coates”), without investigating his background, especially when she had only

known him for “approximately two to three weeks.” Summers also expressed concerns related

to the age and condition of the new apartment and elevation changes within it, which included

stairs and varying flooring heights. Summers cited several other potentially dangerous

conditions in the apartment, including (1) pipes for water or gas running along some walls that

could be moved up or down, (2) a frayed wire behind the bedroom door that C.P. could grab,

(3) the presence of radiators in each room, and (4) the presence of choking hazards on the floor,

such as screws.

        Summers also testified that mother had failed to make any substantial progress in

addressing the mental health issues that contributed to her inability to recognize dangerous

conditions and poor judgment in meeting C.P.’s needs. Finally, Summers testified that C.P. was

living in a prospective adoptive home and “doing well” there. C.P. had “bonded with” her foster

parents, foster siblings, and J.P., her biological sibling.

        Mary Rice (“Rice”) was providing counseling to mother when the de novo trial began.

Rice, a licensed professional counselor and expert in the fields of counseling and parent

coaching,5 also characterized any improvement she saw in mother as minimal. Rice further

characterized mother’s parenting ability as “very limited” based upon, among other deficiencies,

that mother neither fed C.P. nor changed her diaper during visitations.




        5
        Mother stipulated that Rice was an expert in the fields of counseling and parent
coaching at the November 26, 2018 termination hearing before the circuit court.
                                             -5-
        Although Rice believed that she wanted to “be a good mom and want[ed] to do well,”

mother struggled in attempting to make that happen. Accordingly, Rice testified that she could

not endorse C.P. returning home to mother and was uncertain when she would be ready to care

for C.P.

        Nina Dillon (“Dillon”), a licensed professional counselor, testified to a theme based upon

her observations in which mother “needed prompting regarding basic parenting skills” where

mother acted—or failed to act—in some way that required “correcting.” Dillon cited concern

about mother’s difficulty in regulating her emotions and concerns for C.P.’s safety because

mother did not notice things such as pulling up on a chair or “wandering away” at the

playground. Dillon was especially concerned with mother’s inability to keep an eye on both of

her children simultaneously.

        Christina Campbell (“Campbell”), a Court Appointed Special Advocate (“CASA”)

volunteer who had contact with mother about once a week, also corroborated the testimony of

the other NCDSS witnesses.

        Dr. Marilyn Minrath (“Minrath”), a clinical psychologist, testified to completing two

mental health evaluations on mother. She testified that mother did not understand childhood

development, did not possess parental instinct, and suffered from mental health issues serious

enough to warrant “intensive individual psychotherapy” to address mother’s “underlying

psychological problem” associated with her “developmental trauma” and “persistent depression.”

        Minrath also opined that mother presented a high risk of harm to C.P. based upon her

prior abnormal thoughts of spanking C.P. and recommended that C.P. not return home to mother,

estimating that mother might need one to two years of treatment before she would be prepared

for C.P.’s return.




                                               -6-
       Mother moved to strike this expert “scientific” testimony because there had been no

finding of reliability. The circuit court overruled her objection because she failed to make a

contemporaneous objection.

       Dr. A.J. Anderson (“Anderson”) completed personality, intelligence, parenting, and

mental health evaluations on mother.6 He testified that mother suffered from major depression

and “chronic mood disorder” and could not offer a time in which one could expect mother’s

mental health to improve substantially. Rather, he recommended a “wait and see” approach.

       Mother also moved to strike Anderson’s testimony based on there being no threshold

determination of reliability regarding mother’s chances of recovery or chance of having a

depressive episode; thus, she argued that the circuit court should not admit Anderson’s opinions

as scientific expert testimony. Mother also contended that the science supporting Anderson’s

conclusions was so weak and unreliable that it did not pass the threshold test established in

Spencer v. Commonwealth, 240 Va. 78 (1990). The circuit court denied mother’s motion.

       At the conclusion of NCDSS’s case-in-chief, mother moved to strike the evidence. The

circuit court denied her motion, disagreeing with mother’s argument that her parental rights

could not be terminated pursuant to Code § 16.1-283(C) because she had made substantial

progress in improving her mental health.

       Mother then testified that she had never missed a visitation, had taken C.P. to all of her

regular checkups before NCDSS obtained custody of C.P., and that C.P. had sustained no actual

injury during any visitation.

       Father also testified, citing one occasion in which C.P. woke up at 3:00 a.m. with mother

screaming at her, “shut the fuck up you little brat and go the fuck back to sleep.” Moreover,

father was opposed to C.P. being placed in mother’s custody.


       6
           Mother stipulated that Anderson was an expert in clinical and forensic psychology.
                                               -7-
       Mother then renewed her motion to strike at the conclusion of all the evidence, which the

circuit court denied. During closing argument, C.P.’s guardian ad litem (“GAL”) opined that it

was fortunate that mother sought medical help but argued that the circuit court should terminate

the parental rights of both parents. Regarding mother, the GAL was especially concerned with

her judgment as affected by her mental health issues and, accordingly, her “inability” to make

sufficient progress in improving her mental health.

       The circuit court held that it was in C.P.’s best interests to terminate mother’s parental

rights pursuant to both Code § 16.1-283(B) and 16.1-283(C). The circuit court opined that

mother’s mental health issues had not been remedied despite the presence of extensive evidence

on the efforts and services NCDSS had provided to mother. Accordingly, mother had been

unable to substantially remedy the conditions that led to C.P.’s foster care placement within a

reasonable period of time from the date the child entered foster care, notwithstanding the

reasonable and appropriate efforts of NCDSS and other rehabilitative agencies to such end.

Although mother moved the circuit court to reconsider, the circuit court denied her motion. This

appeal followed.

                                          II. ANALYSIS

                          A. Admission of Expert Opinion Testimony

       Mother argues that “[u]nder Spencer v. Commonwealth, 240 Va. 78 (1990) and related

jurisprudence, the circuit court erred by admitting expert testimony from two psychologists

whose opinions stemmed from their use of unreliable, unscientific, and outmoded testing

methods.”

       Spencer only applies in cases where a litigant is seeking to introduce scientific

evidence—not opinion evidence. See id. at 97 (limiting the need to make a “threshold finding of




                                               -8-
fact” regarding reliability to instances in which “scientific evidence is offered,” which included

the DNA evidence discussed in that matter).

       The testimony of the two psychologists was based upon their opinions derived from their

training, experience, and many hours of personal observation of mother. The psychologists only

represented that science supported their methodology. The fact that their opinions were rooted in

the field of psychology did not make them scientific within the meaning of Spencer and its

progeny. Because the psychologists offered no scientific evidence, we find that the circuit court

did not err in failing to make the “threshold finding of fact” regarding reliability required by

Spencer.

               B. Termination of Parental Rights Pursuant to Code § 16.1-283(C)

       Mother also contends that the circuit court erred “by terminating [her] parental rights

without clear and convincing evidence that she failed to substantially remedy the circumstances

resulting in the child’s abuse, neglect, and/or continued commitment to foster care.”

       “[T]he rights of parents may not be lightly severed but are to be respected if at all

consonant with the best interests of the child.” Richmond Dep’t of Social Servs. v. L.P., 35

Va. App. 573, 580 (2001) (quoting Ward v. Faw, 219 Va. 1120, 1124 (1979)). However, “the

child’s best interests” are the “paramount consideration of a circuit court” in cases where

parental rights are at stake. Logan v. Fairfax Cty. Dep’t of Human Dev., 13 Va. App. 123, 128

(1991). “In matters of a child’s welfare, [circuit] courts are vested with broad discretion in

making the decisions necessary to guard and to foster a child’s best interests.” Id. (quoting

Farley v. Farley, 9 Va. App. 326, 329 (1990)).

       Accordingly, “[w]here the [trial] court’s judgment is based on evidence heard ore tenus,

its decision to terminate a parent’s rights is entitled to great weight and ‘will not be disturbed on

appeal unless plainly wrong or without evidence to support it.’” Thach v. Arlington County

                                                 -9-
Dep’t of Human Servs., 63 Va. App. 157, 168-69 (2014) (quoting Logan, 13 Va. App. at 128).

We “review the evidence in the light most favorable to the party prevailing in the [trial] court.”

Id. (quoting Tackett v. Arlington Cty. Dep’t of Human Servs., 62 Va. App. 296, 303 (2013)).

Additionally, “the recommendation of the guardian ad litem, . . . while not binding or

controlling, should not be disregarded.” Bottoms v. Bottoms, 249 Va. 410, 420 (1995). Thus,

we will not reverse the circuit court’s judgment terminating mother’s parental rights unless the

evidence, viewed in the light most favorable to NCDSS, shows that the circuit court abused its

discretion.

       A court may terminate parental rights if

               [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).

       Because the best interests of the child are paramount, “the purpose of Code

§ 16.1-283(C)(2) is to ensure, if possible, that the best interests of the child are achieved by

‘protect[ing] the family unit and attendant rights of both parents and child, while assuring

resolution of the parent-child relationship without interminable delay.’” L.P., 35 Va. App. at 584

(quoting Lecky v. Reed, 20 Va. App. 306, 312 (1995)). It is “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.” Id. (quoting Kaywood v. Halifax Cty. Dep’t of Soc.

Servs., 10 Va. App. 535, 540 (1990)). This remains true even in cases which “a parent’s mental

deficiency” is the condition that led to the child’s placement in foster care. See id. at 585

(reversing the circuit court’s judgment and ordering residual parental rights terminated when the

                                                - 10 -
“parent’s mental deficiency” was “of such severity that there [was] no reasonable expectation

that such parent [would have been] able within a reasonable period of time befitting the child’s

best interests to undertake responsibility for the care needed by the child in accordance with the

child’s age and stage of development”).

        In this case, mother, without good cause, had been unable to substantially remedy the

conditions that led to C.P.’s foster care placement within a reasonable period of time in excess of

one year from the date C.P. entered foster care. Despite the services NCDSS provided to mother

over nearly eighteen months, there was no reasonable expectation that mother could have

undertaken responsibility for the care C.P. needed in accordance with her age and stage of

development within a reasonable period of time consistent with the child’s best interests.

        Mother’s mental and psychological problems, including major depression with bipolar

traits, rendered her unable to notice or adequately react to safety concerns and, additionally,

frequently overwhelmed mother with the responsibilities involved in caring for C.P.

        Mother entrusted the care of C.P. to NCDSS in 2017 because she could not properly care

for her due to her mental and psychological problems, which included postpartum depression and

suicidal ideation at that time. C.P. was about six months old at that time, and she has been in

foster care ever since—for the majority of her life. C.P. is currently thriving under the care of

her foster family, who wishes to adopt C.P., which would bring permanence and stability to her

life.

        As the GAL argued before this Court on appeal, mother continues to have “significant

psychological challenges” because of her major depression with bipolar traits, despite the

passage of time. As the circuit court properly inferred from the evidence, mother may not be

able to adequately care for C.P. and regain custody of her for another year or more. Thus,

although mother tried to remedy the circumstances that forced C.P. into foster care by

                                               - 11 -
participating in all visitations, evaluations, and appointments for counseling, her major

depression with bipolar traits remains so severe that it is highly unlikely that she can keep C.P.

safe.

        The best interests of the child is not a mechanical determination; rather, it rests upon the

facts of each case. Toombs v. Lynchburg Div. of Soc. Servs., 223 Va. 225, 230 (1982). “In

determining what is in the best interests of the child, a court must evaluate and consider many

factors.” Barkey v. Commonwealth, 2 Va. App. 662, 668 (1986). These factors include

                the age and physical and mental condition of the child or children;
                the age and physical and mental condition of the parents; the
                relationship existing between each parent and each child; the needs
                of the child or children; the role which each parent has played, and
                will play in the future, in the upbringing and care of the child or
                children; and such other factors as are necessary in determining the
                best interests of the child or children.

Id.

        Here, the circuit court properly terminated mother’s parental rights in accordance with

C.P.’s best interests when mother’s mental health impaired her ability to keep C.P. safe.

Continually waiting to discover when, if ever, mother might be able to remedy the conditions

that resulted in C.P.’s foster care placement only prolongs the lack of stability and permanency

in C.P.’s life. This is especially true given the “intrinsic instability of the foster care

environment.” L.P., 35 Va. App. at 576. We also note that the GAL, who had been appointed to

represent C.P.’s best interests, recommended that allowing C.P.’s foster family to adopt her

would be in C.P.’s best interests.

        For all of these reasons, the circuit court did not err in terminating mother’s parental

rights when the evidence clearly and convincingly established that mother failed to substantially

remedy the circumstances (i.e. her mental health issues) resulting in C.P. being abused and

neglected. C.P.’s best interests must prevail over the interest in preserving the parent-child

                                                 - 12 -
relationship between mother and C.P. when mother has remained unable to properly care for C.P.

because of the severity of her mental and psychological problems.

                                       III. CONCLUSION

       For the foregoing reasons, we affirm the circuit court’s judgment.

                                                                                    Affirmed.




                                             - 13 -
