COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Pe tty and Senior Judge Willis Argued by teleconference

KARMEN SYLVIA MEMORANDUM OPINION * BY v. Record No. 1557-06-1 JUDGE ROBERT P. FRANK MARCH 20, 2007 HAMPTON DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Marc Jacobson, Judge Designate Charles E. Haden (Fred C. Hard wick, II; Eusner & Hardwick, P.C., on brief), for appellant. Rachel Allen, Assistant City Attorney; Tonya Henderson-Stith, Guardian ad litem for the minor child (Michael King, Guardian ad litem for appellant; City of Hampton Attorney’s Office; McDermott, Roe & Walter, on brief), for appellee. 1

The residual parental rights of Karmen Sylvia, appellant, were terminated by order of the Circuit Court for the City of Hampton under Code § 16.1-283(C)(2). On appeal, she contends the trial court erred in determ ining the evidence was su fficient (1) to find th e child, S.M., abused and neglected, and (2) to terminate her parental rights. 2 For the reasons stated, we affirm the judgment of the trial court.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Michael King was appointed by the Hamp ton Circuit Court on March 16, 2006, as Guardian ad litem for appellant. On December 19, 2006, this Court removed Michael King as Guardian ad litem for appellant.

2 Appellant also challenges the trial c ourt’s companion order approving the Hampton Department of Social Services (D SS) foster care plan’s goal of a doption. “Our decision to affirm the termination order necessarily subsumes this aspect of [her] appeal because a preponderanceof-the-evidence standard governs judicial modifica tions of foster care plans.” Toms v. Hanover Dep’t of Soc. Servs. , 46 Va. App. 257, 265 n.3, 616 S.E.2d 765, 769 n.3 (2005); see Padilla v. Norfolk Div. of Soc. Servs. , 22 Va. App. 643, 645, 472 S.E.2d 648, 649 (1996). In affirming the- 2 - BACKGROUND 3
S.M. was born June 13 , 2005, at a hospital in Hampton. At the hospital, appellant had difficulty caring for S.M. When Michelle Gaines -Mitchell, a registered nurse, asked if appellant had fed S.M., appellant would respo nd only by “saying that the baby was precious and cute.” On one occasion, Gaines-Mitchell obse rved appellant feeding S.M. S. M. began gagging , but appellant did not remove the bottle fr om the baby’s mouth, requiring Gain es-Mitchell to interv ene. After this incident, S.M.’s pediatrician indicated she did not want the baby to rema in in the room with appellant. The child was taken to the nursery wh ere appellant’s interactio n with S.M. could be monitored. While S.M. was in th e nursery, appellant would not feedher, despite being asked to do so by the nurses. Belinda Gastons, a license d clinical social worker at the hospital, had re ceived an alert from the Newport News Department of Social Serv ices indicating they had removed another of appellant’s children for neglect. 4 Gastons interviewed appellant on June 14. Appell ant did not have a car seat, a crib, formula or diap ers for the child. Gastons disc overed that appellant had trouble understanding instructions from the nurse. At th at time, Gastons contacted the Hampton Department of Social Services (DSS).

trial court’s termination of appe llant’s parental rights, we find that the evidence presented by Hampton DSS satisfied the more rigorous “clear and convincing evidence” standard.

3 On May 24, 2006, the Hampto n Circuit Court heard appellant ’s appeal of the following three rulings of the Hamp ton Juvenile & Dome stic Relations District C ourt: (1) the August 23, 2005 order finding S.M. abus ed and neglected by appellant, (2) th e February 7, 2006 order changing the foster care plan goal from “return to parent ” to “adoption,” and (3) the April 4, 2006 order terminating appellant’s resi dual parental rights. Th e facts recited in this opinion derivefrom the testimony adduced at the May 24, 2006 hearing in Hampton Circuit Court.

4 By order of the Newport News Juvenile & Domestic Relations District Court, entered May 29, 2003, S.J. was found to be abused and ne glected by virtue of appellant’s mental incapacity. The child’s custody wa s awarded to Newport News Depa rtment of Social Services. Newport News Department of Social Services was aware of appellant’s pregnancy with S.M., and issued an alert to all nearby hospitals.- 3 - Janice Norton, a Hampton DSS worker, met with appellant. When Norton asked how frequently a baby needed to be fed, appellant said that a baby should be fed three times a day. Norton noticed appellant did not interact with S.M. Norton ha d also received information from Newport News Department of Social Services regarding the removal of S.J. from appellant’s care. This information indicated that appellant “had not been cooperative with pr evious services” offered in relation to S.J. and that appellant had been diagnosed with schizophrenia, paranoid type, with borderline intellectual functioning. Norton also was aware of prior acts of domestic violence involving appellant’s husband. Norton expresse d concern that appellant would not be able to provide for the basic care and safety of S.M., base d on the problems encountered by appellant in the hospital as well as on the in formation Norton received about appellant’s care of S.J. Appellant was not allowed to take S.M. home from the hosp ital. S.M. wa s taken into custody by Hampton DSS. On August 23, 2005, the Hampton Juvenile & Domestic Relations District Court found S.M. to be abused and neglected, awarded custody to Hampton DSS, and approved a foster care plan with the goa l of “return to pare nt or relative.” The foster care plan approved by the court required appellant, inter alia , (1) to obtain and maintain suitable hous ing, (2) to complete and follow recommendations of various service providers, (3) to maintain regular visitation, (4) to participate in medication management, and (5) to demonstrate an ability to prov ide a safe and stable living environment for the child. Appellant, as required by the initial foster care plan, ma intained contac t with DSS and obtained housing, although the house “was not ap propriate for [S.M.].” Appellant completed the parental capacity evaluation on July 26, 2005. Appella nt completed most of the recommendations of that evaluation, but she miss ed some individual therapy appo intments. Appell ant maintained visitation with the child.- 4 - Dr. Nadia Boyd, a licensed clinic al psychologist, testified that during the evaluation process, appellant had difficulty understanding questions. The evaluation revealed appe llant’s I.Q. to be 69, “which placed her in the extremely low range of intellectual functioning ,” or mild mental retardation. At this le vel, appellant would need assistance to live independently. Her score on Independent Living Skills placed he r “in the very low range . . . of adoptive living skill s” and “in the impaired range regarding accessing medical help qu ickly and recognizing hea lth risks.” Dr. Boyd indicated appellant would have difficu lty in assessing risks to the child. Dr. Cathy Tirrell, a licensed c linical psychologist, performed a parental capacity evaluation on appellant. Appellant appeared “t o have a very poor insight as far as the factors that led to the removal of her childre n . . . .” Appellant told Dr. Tirrell th e devil had inserted negative thoughts in her mind. Dr. Tirrell confirmed appellant’s di agnosis of paranoid sc hizophrenia and further diagnosed appellant with a depressive disorder. Dr. Tirrell testified appellant has shown “signi ficant deficits in her understanding of child health care, nutrition and safety principles.” Appellant did not understan d child development and growth, and a child’s relationship with parents. Dr. Tirrell indicated that despite the fact that appellant completed parenting classes, she was unabl e to absorb the information and to act on that information. She would not recommend S.M. be returned to appellant. Canandra Cooke, a Hampton DSS worker, testif ied as to why the “return to parent” goal was changed to adoption. 5 Cooke determined that, “given six more months[,] they would still be in the same position that they are current[ly] . . . .” Of particular concern was appellant’s inability to tell time, which w ould imperil the child’s need to be timely fed and timely given medication. When the worker advised appellant of the proposed change in goal, appellant began

5 No relative was prepared to a ssume the long term care of S.M.- 5 - to discuss the child’s co llege education, a response unrelated to the topic. Appellant was unable to “grasp” the situation. The trial court found that S.M. was abused and neglected by vi rtue of appellant’s behavior in the hospital and that the chan ge in goal to adoption was supported by the evidence. The trial court further opined that clear and convincing evid ence supported a finding that termination was in the best interests of S.M. and that the requirement s of Code § 16.1-283(C)(2 ) had been satisfied by clear and convincing evidence. This appeal follows.
ANALYSIS When addressing matters con cerning the custody and care of a child, this Court’s paramount consideration is the child’s be st interests. Toom bs v. Lynchburg Di v. of Soc. Servs. , 223 Va. 225, 230, 288 S.E.2d 405, 407- 08 (1982). The trial court is vested with broad discretion in making decisions “necessary to guard an d to foster a child’s best in terests.” Farley v. Farley , 9 Va. App. 326, 328, 387 S.E.2d794, 795 (1990). On appeal, we presume that the trial court thoroughly weighed all the evidence, considered the statutor y requirements, and made its determination based on the child’s best interests. Id. at 329, 387 S.E. 2d at 796. Within this framework, we review the evidence in the light most favor able to the prevailing party below, Hampton DSS. Schoenwetter v. Schoenwetter , 8 Va. App. 601, 60 5, 383 S.E.2d 28, 30 (1989). We will not disturb a trial court’s factual findings on appeal unl ess plainly wrong or without evidence to support them. Brown v. Spotsylvania Dep’t of Soc. Servs. , 43 Va. App. 205, 211, 597 S.E.2d 214, 217 (2004). Where the record contains cr edible evidence in support of the findings made by the trial court, we may not retry the facts or substitute our view of the facts for those of the trial court. Ferguson v. Stafford Co unty Dep’t of Soc. Servs. , 14 Va. App. 333, 336, 417 S.E.2d 1, 4 (19 92). However, “[c]onclusio ns unsupported by facts ar e insufficient to sever for- 6 - all time the legal connection betweenparent and child.” Ward v. Faw , 219 Va. 1120 , 1125, 253 S.E.2d 658, 662 (1979).
I. ABUSE AND NEGLECT Appellant first contends th e evidence was insufficient to prove S.M. was abused and neglected. Specifically, she argues that there was no evidence th at appellant’s actions, or her cognitive impairment, impacted the child so as to cause a su bstantial risk of impa irment of bodily or mental functions. The evid ence belies this argument. Code § 16.1-228 defines an “abused and neglected child” as any child: 1. Whose parents or other person responsible for his care creates or inflicts, threatens to create or inflict, or allows to be created or inflicted upon such child a physical or mental injury by other than accidental means, or creates a substantial risk of death, disfigurement or impairment of bodily or mental functions . . . . 2. Whose parents or other person re sponsible for his care neglects or refuses to provide care necessary for his health . . . . “[T]he statutory definitions of an abused or ne glected child do not require proof of actual harm or impairment having been experienced by th e child. The term ‘substantial risk’ speaks in futuro . . . .” Jenkins v. Winchester Dep’t of Soc. Servs. , 12 Va. App. 1178, 1183, 409 S.E.2d 16, 19 (1991). A child need not “suffer an actual in jury from the behavior of his or her parent before receiving the Commonwealth ’s protection.” Jackson v. W. , 14 Va. App. 391, 402, 419 S.E.2d 385, 391 (1992). Preponderance of the evidence standard is an appropriate standard for an abuse and neglect proceeding. Wright v. Arlin gton County Dep’t of Soc. Servs. , 9 Va. App. 411, 414-15, 388 S.E.2d 477, 479 (1990). “The burden of showing something by a ‘preponderance of the evidence[]’ . . . ‘simply requires th e trier of fact to believe that the existence of a fact is more probable than its nonexistence . . . .’” Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers- 7 - Pension Trust for S. Cal. , 508 U.S. 602, 622 (1993) (quoting In re Winship , 397 U.S. 358, 371-72 (1970) (Harlan, J., concurring)). The record contains credible evidence that S.M. was abused and neglected. Appellant was not prepared to care for the child at home. At the time of S.M.’s bi rth, appellant had no car seat, diapers, crib or formula. Because of he r mental retardation and mental health issues, appellant did not understand how to feed an infa nt or the frequency of feedings. She had difficulty following instructions. Further, an other child had been removed from appellant’s custody due to abuse and neglect. Thus, a number of risk factors were pres ent that “create[d] a substantial risk of . . . impairment of [S.M.’s] bodily or mental functions.”
II. TERMINATION OF PARENTAL RIGHTS Appellant argues the evidence was not su fficient to prove, by clear and convincing evidence, that termination was in S.M.’s best interests or that the requirements of Code § 16.1-283(C)(2) were proven. Appellant argues sh e was not given sufficient time to remedy the conditions that brought the child into foster care , nor were reasonable a nd appropriate services provided to her. She also claims the evidence di d not establish that she was either unwilling or unable to remedy the conditions. Code § 16.1-283(C) speaks in the conjunc tive. The court must find, upon clear and convincing evidence, (1) that term ination is in the best intere sts of the child, and (2) that [t]he parent or parent s, without good cause, have been unwilling or unable within a reasonable period of time not to exceed twelve months from the date the child wa s placed in foster care to remedy substantially the conditio ns 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 ag encies to such end. . . . Code § 16.1-283(C)(2).- 8 - “The twelve-month time limit establishe d by Code § 16.1-283(C)(2) was designed to prevent an indeterminate state of foster care ‘drift’ and to enc ourage timeliness by the courts and social services in addressing the circumstances th at resulted in the foster care placement.” L.G. v. Amherst County Dep’t of Soc. Servs. , 41 Va. App. 51, 56, 581 S.E.2d 886, 889 (2003). The legislation established a reas onably presumptive time frame of twelve months for parents to rece ive rehabilitative services to enable them to correct the condi tions that led to foster care placement. . . . If the parent fails to substantially remedy those conditions within twelve months the court may act to prevent the child from lingering in foster care. Id. at 57, 581 S.E.2d at 889. The record contains credible evidence to support the trial court’s finding that termination is in the best interests of S.M. and that th e requirements of Code § 16.1-283(C)(2) have been
proven. Appellant’s parental rights were terminated because of appellant’s lack of progress in remedying the circumstances that led to the child’s initial removal from her care. While she completed most of the DSS recommendations, she st ill did not have the cognitive ability to care for the child. She could not tell time, thus impe riling the child’s need to be fed and timely given medication. Dr. Boyd testified appellant would need assistance for independent living. She would have difficulty assessing risks to the ch ild. Dr. Tirrell opined appellant had “very poor insight as far as the factors that led to the removal of her children . . . .” Appellant had “significant defects in her unders tanding of child health care, nut rition and safety principles.” Despite the fact appellant completed parenting cl asses, she was unable to absorb the information and act upon that information. While appellant argues she was not given su fficient time to remedy the conditions that brought her daughter into foster ca re, the evidence clearly proves that additional time would not remedy appellant’s cognitive functioning nor her in ability to ensure the health, safety and- 9 - well-being of the child. It is particularly note worthy that another child had been removed from appellant’s care and custody in 2003 because appellant was unable to meet that child’s needs.
See Jenkins , 12 Va. App. at 1186, 409 S.E.2d at 21 (holdi ng that “evidence of the termination of rights as to the other children” was relevant to determining whet her mother’s parenting abilities “created a substantial risk of impairment of bodily or mental f unction” to the child in question). “It is clearly not in the best interests of a ch ild to spend a lengthy period of time waiting to find out when, or even if, a parent will be capable of resuming [her] responsibilities.” Kaywood v. Halifax County Dep’t of Soc. Servs. , 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990). Appellant maintains the department did not comply with the mandate of Code § 16.1-283(C)(2) by not providing appellant with reas onable and appropriate services to assist her. Whether or not Hampton DSS pur sued “reasonable efforts” to assist appellant is a factual determination to be made by the fact finder. Ferguson , 14 Va. App. at 338, 417 S.E.2d at 9-10. “‘Reasonable and appropriate’ efforts can only be judged with reference to the circumstances of a particular case.” Id. at 338, 417 S.E.2d at 9. “Thus, a court must determine what constitutes reasonable and appropriate efforts give n the facts before the court.” Id. at 338, 417 S.E.2d at 10. Again, it is clear that while appellant complie d with the requirements of the initial foster care plan, she was unable to absorb or utilize that information. Nothing in the record suggests continued services would alleviate her deficits. The testimony before the trial court was to the contrary. Appellant did not understand child development and growth and had substantial deficits in her understanding of child health care, nutrition and safe ty principles. See Jenkins , 12 Va. App. at 1183, 409 S.E.2d at 19 (finding that, desp ite the efforts made by the mother to meet the goals set out by the foster care plan, the moth er “had not progressed to a point where she was capable of functioning as an independent parent”).- 10 - Under the facts of this case, we cannot say the trial court erred in finding the child was abused and neglected, and the tria l court did not err in terminati ng appellant’s parental rights. Affirmed.