COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Felton, Judges Haley and Beales 

Argued at Alexandria, Virginia 

GERARDO JESUS ORTEGA 

 

v. Record No. 2455-09-4 

 

FAIRFAX COUNTY DEPARTMENT OF FAMILY SERVICES 

GERARDO JESUS ORTEGA 

v. Record No. 2456-09-4 

FAIRFAX COUNTY DEPARTMENT OF FAMILY SERVICES 

 MEMORANDUM OPINION*

 BY 

GERARDO JESUS ORTEGA JUDGE JAMES W. HALEY, JR. 

 JUNE 15, 2010 

v. Record No. 2457-09-4 

FAIRFAX COUNTY DEPARTMENT OF FAMILY SERVICES 

GERARDO JESUS ORTEGA 

v. Record No. 2458-09-4 

FAIRFAX COUNTY DEPARTMENT OF FAMILY SERVICES 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Robert J. Smith, Judge 

 Mark Bodner for appellant. 

 Deborah C. Laird, Assistant County Attorney; Anne Wren Norloff, 

Guardian ad litem for the minor children (David P. Bobzien, 

County Attorney; Peter D. Andreoli, Jr., Deputy County Attorney, on 

brief), for appellee. 

 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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I. INTRODUCTION 

 Gerardo Jesus Ortega maintains the trial court erred in terminating his parental rights to 

two children, the court having determined he failed to timely and substantially remedy the 

conditions which led to or required continuation of the placement of those children in foster care, 

as required by Code § 16.1-283(C)(2).1

 We find the decision of the trial court supported by clear 

and convincing evidence and affirm the same.2

II. BACKGROUND 

 In July 2006, the Fairfax County Department of Family Services (DFS) received a Child 

Protective Services referral. That referral alleged that Ar, a female child then age nine, had been 

sexually abused by Israel Valle, an adult man living in her home at the invitation of her father, 

Ortega. The child’s mother was deceased. DFS met with Ortega and developed a safety plan 

whereby Valle left and Ortega agreed to prohibit any contact between Valle and his children.3

 

Ortega also had a seven-year old son, An.4

 

In December 2006, DFS received a report Ortega had physically abused the children. 

Ortega denied the same. The family lived in a one-bedroom apartment. Because the children 

had nothing to eat but rice and beans, DFS referred the family for food assistance. 

1

 Ortega does not maintain that Fairfax County Department of Family Services (DFS) did 

not offer “reasonable and appropriate efforts of social, medical, mental health or other 

rehabilitative agencies” to remedy those conditions, as also required by Code § 16.1-283(C)(2). 

Nor does Ortega maintain DFS failed to seek placement of the children with relatives of the 

child. See Code § 16.1-283(A). 

2

 DFS conceded at oral argument that Ortega had preserved his challenge to the 

sufficiency of the evidence. See Code § 8.01-384. 

3

 Apparently, Valle was convicted upon Ar’s testimony and either remains in jail pending 

deportation, or has been deported. 

4

 We refer to the female child as Ar and her brother as An. 
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On March 20, 2007, DFS received a third referral and upon investigation learned that 

Valle had returned, that the sexual abuse was continuing, and that Valle threatened to kill Ar if 

she told anyone. It was also discovered that Valle had sexually abused An. Ortega first said that 

Valle was a minister in his church, but later admitted it was a falsehood. Ortega claimed Valle 

only stayed in his home several days a week, and he permitted Valle to return to the home, 

despite the specific prohibition in the safety plan, because Valle gave him money and because 

Ortega had “a soft heart.” 

On March 22, 2007, DFS obtained emergency removal orders. Marcela Dzeda, a 

licensed clinical social worker, was assigned to monitor Ortega’s progress. On April 26, 2007, 

the Fairfax Juvenile and Domestic Relations District Court (J&D court) entered a finding of 

abuse and neglect against appellant. 

On June 11, 2007, the J&D court placed the children in temporary custody of DFS (with 

supervised visitation by Ortega), with a foster care goal of return home. Ortega was ordered to 

submit to a psychological examination and an alcohol and drug evaluation and follow all 

recommendations generated as a result of these, as well as participate in parenting classes. 

Ortega was also ordered to develop a safety plan for the children. 

By agreed J&D court order entered December 5, 2007, custody was retained with DFS, 

the foster care plan to return home again approved, and Ortega directed to comply with the June 

11, 2007 order. Similar orders were entered on April 16, 2008, and July 21, 2008, each again 

with a permanency plan to return to home. Significantly, the July 21, 2008 order, though finding 

Ortega participated in therapy and visitations, also recites the following: “It further appearing to 

the Court that the father’s living arrangements continue to be unstable and the father has not been 

honest with the Department about his living environment.” 
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On September 16, 2008, DFS filed petitions seeking the termination of Ortega’s parental 

rights as to each child and a permanency plan with the goal of adoption likewise for each. On 

March 18, 2009, the J&D court entered orders granting the petitions. At that time, the children 

had been in foster care for two years, since the original emergency order of March 22, 2007. 

Ortega appealed, and the matter was heard on September 1-2, 2009. In addition to the 

testimony, the entire case file, including all the permanency plans, the voluminous letters sent to 

Ortega, and the DFS supporting documents, was introduced without objection and made part of 

the record before us. 

Marcela Dzeda, a licensed clinical social worker employed by DFS, was assigned the 

Ortega matter, as noted above, in March 2007, and continued in that capacity until January 2009 

when she went on maternity leave. 

Dzeda testified that Ortega had completed an alcohol and drug evaluation, a 

psychological examination, and a parenting class in 2007. He refused to have a psychiatric 

examination or consider using any medication such an examination might recommend. He did 

visit the children on a weekly basis, though sometimes appearing late for appointments. 

The goal of the permanency plans of June 11, 2007, December 5, 2007, April 16, 2008, 

and July 21, 2008, was always to return the children to their home, and DFS efforts were 

consistent with this goal. 

But two problems continued to arise: (1) Ortega’s continuous failure to provide a 

physical home for himself and the children and to demonstrate he had funds to provide for their 

necessities; and (2) Ortega’s continuous failure to provide what was referred to as a safety plan; 

that is, a demonstration that he appreciated the psychological trauma the sexual abuse had visited 

upon the children, that he accepted his responsibility for not protecting them from the same, that 
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he would aid in their psychological recovery, and that he would prevent any reoccurrence of such 

trauma. 

With respect to the former, Ortega never provided DFS, despite repeated requests for 

over two years, any information as to where he actually worked, such as a letter from a purported 

employer that he was working, giving rates and times. He claimed at various times to be 

working for a car painting business, for a home remodeling business, and for a landscaping 

business. But he refused to provide any pay-stubs, or paycheck copies, or W-2’s. He did 

provide verbal information with respect to a rough budget, but it showed that after rent and 

utilities, he retained only $130 per month to pay for the children to have food, clothing, 

transportation, or the $300 per month he was supposed to pay DFS for child support. Indeed, 

DFS filed a petition which relieved him of this latter obligation for a period of six months so as 

to help Ortega. Ortega was not eligible for further financial assistance because he was, and 

remains, an undocumented alien. On cross-examination, Dzeda testified without objection that 

one of Ortega’s pastors stated: “that that man has never worked, and instead, he goes around 

asking for money from different churches.” 

With respect to housing, Ortega often simply would not tell DFS where he was living, or 

if he did, he would refuse them a visit to inspect the premises. In March 2008, he permitted them 

to visit a two-bedroom apartment, which would have been appropriate housing for the children. 

Yet by June 2008, the power had been turned off. In October 2008, Ortega advised he was living 

with a friend in a rented room, but would not permit a visit, insisting he would soon get an 

appropriate apartment. 

Nicole Cox, a foster care worker who followed the case from January 2009 to May 2009, 

when Dzeda was on maternity leave, was given an address where Ortega lived and conducted an 

unannounced visit on March 17, 2009. He was renting a single 10’ by 12’ room, which he 
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shared with another man, in a home occupied by ten people. He slept on a pallet made of 

blankets on the floor, and his clothes were piled on the floor beside the blankets. 

The housing situation is best demonstrated by the following exchange when Ortega 

testified in the circuit court on September 2, 2009: 

The second question asked on direct: 

Q. And what’s your address? 

A. I don’t have it in my mind right now. Since it’s new 

where I’m at, I don’t remember it. 

On cross-examination: 

Q. Mr. Ortega, why have you not let Ms. Dzeda see where 

you’re living? 

A. Because I’ve been working . . . . 

Q. And have you been at the place where you’re living for 

a long time? 

A. I’ve been there a long time . . . . 

Q. So if you’ve been there for a long time, why don’t you 

know the address? 

A. Well, it’s confusing, when the streets are there; the 

numbers, and such . . . . 

Q. And do you have an apartment? 

A. At this moment, if I had my children, I would get an 

apartment, if I could have three days, or a week, in order to do that. 

 By the court: 

 Q. [A]re you renting a room in a house? 

A. Yes, I’m renting a room in a house. 

Concerning the second problem noted above, that is, the necessity to provide a safety 

plan for the children, Dzeda testified: 
 -7-

I was . . . looking to see if he would accept some sort of 

responsibility for the abuse that occurred, and what steps he would 

really take, in order to make sure that no abuse were to happen 

again in the future, and I didn’t really get any of that . . . . Because 

in terms of a safety plan, he wasn’t taking any responsibility of his 

role in the abuse that took place; he didn’t appear to understand the 

impact that this severe sexual abuse happened on his kids, and it 

was a pretty big deal. And I never got that sense from him, that he 

really got it . . . . [The permanency plan was finally changed to 

adoption because in part] I think it was his inability to demonstrate 

parenting abilities to keep these kids safe. 

LaTeeka Tutwiler, a social worker with Child Protective Services, had been involved in 

the 2006 investigation, noted above, which received reports Ortega had been beating the 

children, and with the 2007 investigation of sexual abuse which led to their removal. With 

respect to safety, Tutwiler testified that Ortega “stated that several men had sexually abused his 

daughter” (not including Valle). Ortega told Tutwiler that he only knew the first names of these 

men and that they had returned to Mexico. As the record discloses, Ortega had never mentioned 

this abuse before and had never reported it to the police. 

David Benjamin, a licensed social worker whose primary area of work is the 

psycho-social assessment of children between seven and nineteen years of age and who has aided 

over a thousand children, qualified as an expert. He had seen An weekly from August 2007 until 

the hearing in September 2009. An is “anxious” and has a hard time discussing what had 

happened to him. Ortega attended some of the sessions with An and Benjamin. Benjamin 

testified that An “doesn’t seem to really have a tremendous attachment for his father . . . . I never 

got a sense that there was like any great warmth between the two of them.” He continued: 

“Q. And how successful . . . were you in being able to discuss that [the sexual abuse] in family 

therapy with Mr. Ortega? A. Actually, not successful at all.” 
 -8-

Benjamin related that Ortega would not discuss where he worked or where he lived and 

gave inconsistent stories about his relationship with Valle, including how Valle came to live in, 

and then return to, his home. He further testified: 

Q. Now, after working with [An] and Mr. Ortega for two 

years, what is your opinion, within a reasonable degree of certainty 

in the field of social work, as to Mr. Ortega’s ability to care for 

[An]? 

A. I don’t have any sense at all of that. I mean, he never --

well, he never seemed concerned about actually how the kids are 

doing; he never asked me. 

He never showed concern about his son’s sexual abuse 

history, and how that might have affected him. He never actually 

asked how he was doing emotionally . . . never showed or 

expressed any interest or concern, as his therapist, about -- simply, 

like, how’s he doing. 

Benjamin concluded that An is presently “doing good enough in school, probably close to 

his ability. He gets along with his foster family; he has some friends. He’s doing okay now.” 

An is now eleven years old. 

Pamela Frank, a licensed professional counselor, supervises nine other clinicians and has 

her own caseload. She qualified as an expert. Ar is one of her patients, who she has seen on a 

weekly basis since August 2007. Ar suffers from sleep disturbances, flashbacks to her sexual 

abuse, a fear of basements or dark places, and “hyper-arousal,” that is, “hyper-vigilance” to 

sounds, etc. She testified: 

Q. So how far . . . did you get toward developing any kind 

of concrete safety plan? 

 A. Well, it was difficult to create a safety plan, because we 

weren’t able to get phone numbers [from Ortega] and . . . creating 

a safety plan is important. But you have to have an address, you 

have to have a place where we can create a safety plan around. 

Mr. Ortega was never forthcoming with that information, so we 

never were able to sort of set down and create what would be a 

safety plan. 
 -9-

Frank continued: 

 Q. [W]hat is your opinion, to within a reasonable degree of 

certainty . . . as to Mr. Ortega’s ability to protect [Ar] if she is 

returned to his care? 

A. I have doubts that he would be able to do that, because 

he doesn’t seem to recognize . . . . You have to be aware of 

situations to be able to change them, and I have not seen that kind 

of awareness with Mr. Ortega. 

Addressing the second problem, that is, the development of a safety plan, Ortega testified 

that “I have concrete plans, and sure plans . . . . I have a plan that’s well-defined, about what I’m 

going to do with my children.” But above and beyond general plans such as getting an apartment 

sometime in the future, hiring a babysitter, employing professional therapists, and informing the 

children of emergency telephone numbers, Ortega could not state the details of his plan. 

In opening statement, Anne Norloff, the guardian ad litem for the children stated: 

“[Ortega] has had an amazing number of services, and is still not able to achieve a reasonable 

living situation for the children.” In closing statement, Ms. Norloff supported the termination of 

parental rights and concluded: “And Mr. Ortega has not remedied the conditions that brought the 

children into care.” 

III. STANDARD OF REVIEW 

We presume in our review of a decision to terminate parental rights that the circuit court 

“‘thoroughly weighed all the evidence, considered the statutory requirements, and made its 

determination based upon the child’s best interests.’” Fields v. Dinwiddie County Dep’t of Soc. 

Servs., 46 Va. App. 1, 7, 614 S.E.2d 656, 659 (2005) (quoting Farley v. Farley, 9 Va. App. 326, 

329, 387 S.E.2d 794, 796 (1990)). “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.” Id. (internal quotation marks omitted); see also Gray v. Gray, 228 Va. 696, 699, 324 S.E.2d 

677, 679 (1985). We view that evidence in the light most favorable to the party who prevailed in 
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the circuit court and grant to that party all reasonable inferences fairly deducible from that 

evidence. Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 262, 616 S.E.2d 765, 767 

(2005). 

Because “the rights of parents may not be lightly severed,” M.G. v. Albermarle County 

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

marks omitted), evidence justifying termination must be clear and convincing, Lowe v. Dep’t of 

Pub. Welfare, 231 Va. 277, 281, 343 S.E.2d 70, 72 (1986). Nonetheless, we cannot “substitute 

our judgment” for the circuit court’s, even upon such a weighty issue as termination; rather our 

review of the record is limited to a determination as whether or not the evidence adduced 

supports, by the clear and convincing standard, the decision of the trial court. Ward v. 

Commonwealth, 13 Va. App. 144, 148, 408 S.E.2d 921, 923 (1991). Finally, we are reminded 

that, at its core, the “child’s best interests” remain the “paramount consideration” of the court. 

Akers v. Fauquier County Dep’t of Soc. Servs., 44 Va. App. 247, 262, 604 S.E.2d 737, 744 

(2004). “And the best interest of the child must be the primary concern of the court.” Stanley v. 

Fairfax County Dep’t of Soc. Servs., 242 Va. 60, 63, 405 S.E.2d 621, 623 (1991). 

IV. ANALYSIS 

 In this case, DFS petitioned to terminate pursuant to Code § 16.1-283(C)(2). That statute 

has conjunctive requirements. The court must conclude, upon clear and convincing evidence, 

that termination is in the best interest of the child and that “[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.” Code 

§ 16.1-283(C)(2); see also Toms, 46 Va. App. at 271, 616 S.E.2d at 772; L.G. v. Amherst 

County Dep’t of Soc. Servs., 41 Va. App. 51, 56-57, 581 S.E.2d 886, 889 (2003). 
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The twelve-month time period established by Code § 16.1-283(C)(2) is a “reasonably 

presumptive time frame . . . for parents to receive rehabilitative services to enable them to correct 

the conditions that led to foster care placement.” L.G., 41 Va. App. at 57, 581 S.E.2d at 889. 

Yet this twelve months “does not, however, temporally restrict the trial court’s consideration to 

events that occurred between the parent and the child only during that discrete twelve-month 

time period to the exclusion of what may have occurred before and after those dates.” Id. To 

construe the twelve-month period as a limit “would deny the fact finder the opportunity to 

evaluate the present best interests of the child.” Roanoke City Dep’t of Soc. Serv. v. Heide, 35 

Va. App. 328, 337, 544 S.E.2d 890, 894 (2001). 

Ar and An entered foster care by order of March 22, 2007. Ortega’s parental rights were 

terminated by order entered October 21, 2009. That is an interval of thirty-one months. DFS 

filed and the court approved permanency plans with the goal of return to “home.” Here, that 

home requires at a minimum a realistically permanent physical space to house the children and a 

demonstration of financial resources to provide not just the housing, but adequate means to 

provide food, clothing, and supervision for these children. A home, in these circumstances, 

further requires one in which the surviving parent personally recognizes the psychological 

devastation imposed on these children by their prior sexual abuse, the effects of which 

devastation remained in existence at the time of the hearing in circuit court. A home also 

requires a concomitant acknowledgement by this parent of his prior failure to protect his children 

from sexual abuse. In short, here, a home requires a safety plan. Ortega does appear to love 

these children. But love for a child, alone, does not constitute a home for a child; nor does love 

for a child constitute a sole reason not to terminate parental relations. 

Two persistent problems led DFS to change the permanency plan to one of adoption in 

September 2008. These problems were discussed in detail above—a lack of a physical home and 
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the lack of a safety plan. As of the dates of the hearing in circuit court, September 1-2, 2009, 

Ortega had addressed neither. He had no physical home for the children; he had no safety plan.5

And he was granted twice the length of time allotted by statute to provide the same. 

Ortega “had not progressed to a point where [he] was capable of functioning as an 

independent parent.” Jenkins v. Winchester Dep’t of Soc. Servs., 12 Va. App. 1178, 1183, 409 

S.E.2d 16, 19 (1991). Ortega provided no plans for the care of these children. Ortega’s “‘past 

actions . . . over a meaningful period serve as good indicators of what the future may be expected 

to hold.’” Wingfield v. Urquhart, 25 Va. App. 688, 695-96, 492 S.E.2d 464, 467 (1997) (quoting 

Linkous v. Kingery, 10 Va. App. 45, 56, 390 S.E.2d 188, 194 (1990)). 

The decision of the circuit court is supported by clear and convincing evidence and is, 

accordingly, affirmed. 

Affirmed.

 5

 On brief, Ortega argues evidence concerning his lack of verifiable employment and his 

unstable housing do not relate to “the conditions which led to or required continuation of the 

child’s foster care placement” under Code § 16.1-283(C)(2). Ortega argues such conditions were 

remedied by the lack of further contact with Valle. We disagree. Ortega’s inability to maintain 

stable housing and finances concern the likelihood of future sexual abuse.