COURT OF APPEALS OF VIRGINIA

Present: Judg es Frank, Clements an d Senior Judge Coleman

GWENDOLYN SALES MEMORANDUM OPINION * v. Record No. 02 50-03-4 PER CURIAM JULY 22, 2003 ALEXANDRIA DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Donald M. Ha ddock, Judge (Gwena Kay Tibbits; Law Offices of Gwena Kay Tibbits, on brief), for appellant. (Mary Elliott; Office of the City Attorney, on brief), for appellee. (Dorathea J. Peters; Peters & Mullins, on brief), Guardian ad litem for the children.

Gwendolyn Sale s (mother) appeals the decision of the trial court terminating her residual parental rights in four of her children, Mali k, William, Cristal and Mo isha (collectively, "the children"). On appeal, mother contends the trial court erred by finding (1) she, withou t good cause, had been unwilling or unable to remedy substantiall y the conditions which led to the foster care placement of th e children; and (2) the termin ation of her residual parental rights was in the best interests of the

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.children. The Alexandr ia Department of Soci al Services (ADSS) raises one issue on ap peal: whether it wa s appropriat e for the trial court to consider evidence as of th e date of the trial rather than evalua ting the facts as of the date of the foster care review hearing in the juvenile and domestic relations district court (JDR court). Up on reviewing th e record and briefs of the parties, we conc lude that this appeal is withou t merit. Accordingly, we su mmarily affirm the decision of the tria l court. See Rule 5A:27. BACKGROUND On appeal, we view the evidence and all the re asonable inferences in th e light most favorable to appellee as the party prevailing below. See McGuire v. McGuire , 10 Va. App. 248, 250, 391 S.E.2d 344, 346 (1990). In her opening brie f, mother admits th at she is a chronic drug abuser. The re cord indicates mother has a twenty-year history of drug abuse. In December 1999 , ADSS became involved with the family after one of the children wa s born addicted to illegal substa nces. ADSS implem ented services to assist mother with the goal of teac hing her effective pare ntal skills. ADSS also coordinated moth er's enrollment in an outpatient drug treatment progra m. However, in April 2000, mother dropped out of the program and di sappeared for mo nths. ADSS an d the guardian ad litem (GAL) for the childr en requested a show cause becaus e mother

- 2 -was not cooperat ing with ADSS and she was not invo lved in substance abuse tr eatment. In November 2000, mother vowed to cooperate and to reenter substance abuse treatment. For about six months, mother complied with ADSS intensive services, and in February 2001 she was admitted into a drug clinic. Mother complied with the treatm ent until she had a relapse in May 2001. After May 2001, mother had sporadic contact with ADSS and she was discharged from the drug clinic due to testing positi ve for drug use, mi ssing meetings, and non-compliance with the rules. In August 2001, ADSS filed a petition alle ging that the children were abused and/or neglected. The petition also requested that the JDR court orde r the removal of the children from mother's care an d the placement of the children into foster care. ADSS made th e requests based on mother's lack of cooperation wi th substance abus e treatment, her "drug envi ronment lifestyle," her fr equent absences from home, her pr ovision of inadequate caretake rs for the children , and her lack of cooperation wi th ADSS. In ad dition, some of the children had untreated medi cal and dental conditions. Several of the children were not enrolled in school, and one chil d was develo pmentally delayed. In September 2001, the JDR court ordered the re moval of the children from th e home, finding th at all of the children were

- 3 -abused and neglected. The court also ordere d mother to either enter a residentia l drug treatment program or go to jail. Mother entered a three- month residentia l drug treatmen t facility in September 2001. While there, she mainta ined contact with her children, but she did not particip ate in her children's therapy sessions. After co mpleting the three- month program, the recommended trea tment plan was for moth er to ente r a women's recovery facility. However, mother returned home. On May 23, 2002, AD SS presented the JD R court pe rmanency plans for the chil dren with the go al of return to parent on the conditions that mother remain so ber and initiate parental skills training. Mother maintained that she had been drug-free from September 7, 2001 un til May 23, 20 02. The JDR court set the matter for a full hear ing and requeste d evidence that mother was maintaining cons istent sobriety. Afte r May 23, 20 02, mother missed five subs tance abuse therap y sessions, she missed several drug screening test s, and she missed two court hearings. Thereafter, in July 2002, ADSS changed th e goal from return to parent to adop tion, stating that it did not appe ar that mother would be able to reach a state of recovery an d parental ability to meet her children's ne eds. A risk assessme nt complete d prior to mother's most re cent relapse indi cated the children were at "high risk," meaning that it was "not likely that timely permanency and/or child well-being will be achi eved." ADSS and numerous

- 4 -drug-related services had worked intensively with mother for two and one-half years on her sobriety issues. ADSS also found that mother was "in denial" about the specia l needs of her children and the fact that her constant drug use had affe cted her children and resulted in thei r neglect. On October 17, 2002 , the JDR court approved the foster care plans with goal of adoption an d terminated moth er's parental rights to the fo ur children. After the October 2002 termination hearing, ADSS inform ed mother that sh e could ar range for visitation with the children, but she never made th e arrangements. On December 23, 2002 , mother entered a so cial detoxification program, which consiste d of daily grou p therapy meetin gs. Mother also appealed the decisi on of the JDR co urt to the circ uit court. At the time of th e January 3, 2003 he aring in the trial court, mother had be en "clean" for about thirty days. Tracy Underhill, a therapist and substance ab use worker for the City of Alexandria, te stified that mother was in the earl y recovery stage of rehabilitation and would probably need several more years of substance abuse tr eatment. The GA L for the children joined ADSS in asking for the term ination of mother's pa rental rights. The GAL stated that mother does not recognize that her addiction, lifestyle, and lack of parenting have ca used problems with each of the children. The GAL also noted that alth ough mother has had periods of sobriety, sh e has relapsed into dr ug use again. The

- 5 -GAL opined that the te rmination of mother's parental rights would be in the best intere sts of the children. The GAL stated that mother "has a long way to go toward . . . le arning what she needs to parent a child" and the GAL saw "no hope of it being done right now in the future." The trial court terminated mother's pare ntal rights pursuant to Code § 16.1-283(B) and (C). The trial court fo und that mother had primarily been making efforts to deal only with he r addiction problems and "without great success." Yet, mother had "virtually no focus on improvin g the parenting skills." Th e trial court found that mother "is just not capable of ta king care of those children, and albe it the addiction may be the root cause of that, her efforts to cure th e addiction have been unsuccessful and her efforts to increase su bstantially her parenting skills have been non-existent." ANALYSIS Termination "Code § 16.1-2 83 embodies 'the stat utory scheme for the termination of residual parental rights in this Commonwealth.'" Lecky v. Reed , 20 Va. App. 306, 311, 456 S.E.2d 538, 540 (1995) (citation omit ted). Subsection (C)(2) , one of the subsections under which the tr ial court terminat ed mother's pare ntal rights in this case, requires pr oof, by clear and convincing evidence, that (1) the terminatio n is in the best intere sts of the child, (2)

- 6 -"reasonable and ap propriate" services have been offered to help the parent "substantial ly remedy the conditio ns which led to or required continuation of the child's foster care pl acement," and (3) despite those services, the pare nt has failed, "without good cause," to remedy thos e conditions. Clear an d convincing evidence is "'that measure or degree of proo f which will pr oduce in the mind of the trier of facts a firm belief or conviction as to the allegations soug ht to be esta blished.'" Martin v. Pittsylvania County Dep't of Soc. Servs. , 3 Va. App. 15, 21, 348 S.E.2d 13, 16 (1986) (citatio n omitted). Mother contends she made substantial prog ress to remedy the conditions which led to the foster care plac ement of the children and the trial co urt's finding th at she had been unwilling or unable to remedy subs tantially the co nditions which led to their foster care plac ement was plainly wrong and withou t evidence to support it. Howeve r, the evidence , viewed in th e light most favorable to ADSS, es tablished that ADSS made "reasonable and appropriate ef forts" to help mother re medy the conditions which both "led to" and "req uired continuati on of" the chil dren's foster care placement. Code § 16.1-283(C)( 2). Nonetheless, mother failed to make reasonable pr ogress toward eliminating the conditions which le d to the placement. Mother has been a ch ronic drug abuser for over twenty years. For more than two years, ADSS and other serv ices made repeated

- 7 -efforts to assist moth er in substanc e abuse rehabili tation and to assist the children wi th counseling and othe r lifestyle matters. However, mother continued to have relapses and she cooperated with the service agenci es only sporadic ally. Mother al so lied about her continuing violent relati onship with a man despite a protective order prohib iting contact be tween the chil dren and the man. The eviden ce showed that this ma n had encourag ed one of mother's children to steal. Mother's drug use and chosen lifestyle greatly affe cted the lives of her children. In addition, because she ha s failed to remedy her addiction problems, mother has not addr essed issues relating to her parenting skills and she has no t sufficiently attended to the children's needs, such as enro lling them in school, provid ing adequate supervision, and providing appropriate medical treatm ent. Although a parent's limitations are factors for the court to consid er, they do no t necessarily co nstitute good cause for failing to remedy the co nditions leading to foster care placement. See Lecky , 20 Va. App. at 312, 456 S.E.2d at 541. Furthermore, "[i]t is clearly not in the best interests of a child to spend a length y period of time wait ing to find out when, or even if, a pare nt will be capabl e of resuming his responsibili ties." Kaywood v. Halifax Co unty Dep't of Soc. Servs. , 10 Va. App. 535, 540, 394 S. E.2d 492, 495 (1 990) (citation omitted).

- 8 -In determining what is in the best interests of the child, a court must evaluate and consider many factors, including 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. Barkey v. Commonwealth , 2 Va. App. 662, 668, 347 S.E.2d 188, 191 (1986). All four of the children have significant needs, including physical, emotional, academic and medical necessities. Two of the children have been placed in therapeutic foster homes because of their extensive special needs. Mother has not provided a stable environment for the children, and she has been unable to address her lack of parenting skills because of her addiction. "The trial court's judgment, 'when based on evidence heard ore tenus , will not be disturbed on appeal unless plainly wrong or without evidence to support it.'" Logan v. Fairfax County Dep't of Human Dev. , 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991) (citation omitted). The record supports the trial court's finding that ADSS presented clear and convincing evidence satisfying the statutory requirements of Code

- 9 -§ 16.1-283 and establishing that termination of mother's parental rights is in the children's best interests. Consideration of Evidence The trial court properly considered evidence of the family's circumstances between the time of the May 2002 hearing in JDR court and the date of the trial. An appeal from the juvenile court must be heard de novo by the circuit court. Code § 16.1-136. "'A de novo hearing means a trial anew , with the burden of proof remaining upon the party with whom it rested in the juvenile court.'" Parish v. Spaulding , 20 Va. App. 130, 132, 455 S.E.2d 728, 729 (1995) (citation omitted). "[A]t a trial de novo in the circuit court, the parties are not restricted to the evidence presented before the juvenile court. The circuit court must consider all relevant evidence, even if such evidence had not been considered by the juvenile court." Fairfax County Dep't of Family Servs. v. D.N. , 29 Va. App. 400, 406, 512 S.E.2d 830, 832 (1999). "A trial court is required to consider any relevant evidence developed prior to the hearing date that may impact on the child's best interests." Parish , 20 Va. App. at 132-33, 455 S.E.2d at 729. Accordingly, we summarily affirm the decision of the trial

court. Affirmed.

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