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. 
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 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.” 
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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.” 
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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 
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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). 
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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 
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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. 
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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.