COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Petty 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. Hardwick, 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 determining the evidence was sufficient (1) to find the 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 opinion is not designated for publication. 

1

 Michael King was appointed by the Hampton 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 court’s companion order approving the Hampton 

Department of Social Services (DSS) foster care plan’s goal of adoption. “Our decision to affirm 

the termination order necessarily subsumes this aspect of [her] appeal because a preponderanceof-the-evidence standard governs judicial modifications 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 - 

BACKGROUND3

 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 respond only by “saying that the baby was precious and cute.” On 

one occasion, Gaines-Mitchell observed appellant feeding S.M. S.M. began gagging, but appellant 

did not remove the bottle from the baby’s mouth, requiring Gaines-Mitchell to intervene. After this 

incident, S.M.’s pediatrician indicated she did not want the baby to remain in the room with 

appellant. The child was taken to the nursery where appellant’s interaction with S.M. could be 

monitored. While S.M. was in the nursery, appellant would not feed her, despite being asked to do 

so by the nurses. 

 Belinda Gastons, a licensed clinical social worker at the hospital, had received an alert from 

the Newport News Department of Social Services indicating they had removed another of 

appellant’s children for neglect.4

 Gastons interviewed appellant on June 14. Appellant did not have 

a car seat, a crib, formula or diapers for the child. Gastons discovered that appellant had trouble 

understanding instructions from the nurse. At that time, Gastons contacted the Hampton 

Department of Social Services (DSS). 

 

trial court’s termination of appellant’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 Hampton Circuit Court heard appellant’s appeal of the following 

three rulings of the Hampton Juvenile & Domestic Relations District Court: (1) the August 23, 

2005 order finding S.M. abused and neglected by appellant, (2) the 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 residual parental rights. The facts recited in this opinion derive from 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 neglected by virtue of appellant’s mental 

incapacity. The child’s custody was awarded to Newport News Department 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 had 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 previous 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 expressed concern that appellant would not be able to 

provide for the basic care and safety of S.M., based on the problems encountered by appellant in the 

hospital as well as on the information Norton received about appellant’s care of S.J. 

 Appellant was not allowed to take S.M. home from the hospital. S.M. was 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 goal of “return to parent or relative.” 

 The foster care plan approved by the court required appellant, inter alia, (1) to obtain and 

maintain suitable housing, (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 provide a safe and stable living environment for the child. 

 Appellant, as required by the initial foster care plan, maintained contact with DSS and 

obtained housing, although the house “was not appropriate for [S.M.].” Appellant completed the 

parental capacity evaluation on July 26, 2005. Appellant completed most of the recommendations 

of that evaluation, but she missed some individual therapy appointments. Appellant maintained 

visitation with the child. 
 - 4 - 

 Dr. Nadia Boyd, a licensed clinical psychologist, testified that during the evaluation process, 

appellant had difficulty understanding questions. The evaluation revealed appellant’s I.Q. to be 69, 

“which placed her in the extremely low range of intellectual functioning,” or mild mental 

retardation. At this level, appellant would need assistance to live independently. Her score on 

Independent Living Skills placed her “in the very low range . . . of adoptive living skills” and “in the 

impaired range regarding accessing medical help quickly and recognizing health risks.” Dr. Boyd 

indicated appellant would have difficulty in assessing risks to the child. 

 Dr. Cathy Tirrell, a licensed clinical psychologist, performed a parental capacity evaluation 

on appellant. Appellant appeared “to have a very poor insight as far as the factors that led to the 

removal of her children . . . .” Appellant told Dr. Tirrell the devil had inserted negative thoughts in 

her mind. Dr. Tirrell confirmed appellant’s diagnosis of paranoid schizophrenia and further 

diagnosed appellant with a depressive disorder. 

 Dr. Tirrell testified appellant has shown “significant deficits in her understanding of child 

health care, nutrition and safety principles.” Appellant did not understand 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 unable 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, testified 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 would 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 assume the long term care of S.M. 
 - 5 - 

to discuss the child’s college 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 virtue of appellant’s behavior 

in the hospital and that the change in goal to adoption was supported by the evidence. The trial 

court further opined that clear and convincing evidence supported a finding that termination was in 

the best interests of S.M. and that the requirements of Code § 16.1-283(C)(2) had been satisfied by 

clear and convincing evidence. 

 This appeal follows. 

ANALYSIS

 When addressing matters concerning the custody and care of a child, this Court’s paramount 

consideration is the child’s best interests. Toombs v. Lynchburg Div. 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 and to foster a child’s best interests.” Farley v. Farley, 9 Va. App. 

326, 328, 387 S.E.2d 794, 795 (1990). On appeal, we presume that the trial court thoroughly 

weighed all the evidence, considered the statutory 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 favorable to the prevailing 

party below, Hampton DSS. Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 

30 (1989). We will not disturb a trial court’s factual findings on appeal unless 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 credible 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 County Dep’t of Soc. Servs., 14 Va. App. 333, 336, 

417 S.E.2d 1, 4 (1992). However, “[c]onclusions unsupported by facts are insufficient to sever for 
 - 6 - 

all time the legal connection between parent and child.” Ward v. Faw, 219 Va. 1120, 1125, 253 

S.E.2d 658, 662 (1979). 

I. ABUSE AND NEGLECT 

 Appellant first contends the evidence was insufficient to prove S.M. was abused and 

neglected. Specifically, she argues that there was no evidence that appellant’s actions, or her 

cognitive impairment, impacted the child so as to cause a substantial risk of impairment of bodily or 

mental functions. The evidence 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 responsible for his care neglects 

or refuses to provide care necessary for his health . . . . 

“[T]he statutory definitions of an abused or neglected child do not require proof of actual harm 

or impairment having been experienced by the 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 injury 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. Arlington 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 the 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 birth, appellant had no car 

seat, diapers, crib or formula. Because of her mental retardation and mental health issues, 

appellant did not understand how to feed an infant or the frequency of feedings. She had 

difficulty following instructions. Further, another child had been removed from appellant’s 

custody due to abuse and neglect. Thus, a number of risk factors were present 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 sufficient 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 she was not given sufficient time to remedy the 

conditions that brought the child into foster care, nor were reasonable and appropriate services 

provided to her. She also claims the evidence did not establish that she was either unwilling or 

unable to remedy the conditions. 

 Code § 16.1-283(C) speaks in the conjunctive. The court must find, upon clear and 

convincing evidence, (1) that termination is in the best interests of the child, and (2) 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, notwithstanding the 

reasonable and appropriate efforts of social, medical, mental health 

or other rehabilitative agencies to such end. . . . 

Code § 16.1-283(C)(2). 
 - 8 - 

 “The twelve-month time limit established by Code § 16.1-283(C)(2) was designed to 

prevent an indeterminate state of foster care ‘drift’ and to encourage timeliness by the courts and 

social services in addressing the circumstances that 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 reasonably presumptive time frame of 

twelve months for parents to receive rehabilitative services to 

enable them to correct the conditions 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 the 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 still did not have the cognitive ability to care 

for the child. She could not tell time, thus imperiling 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 child. 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 understanding of child health care, nutrition and safety principles.” 

Despite the fact appellant completed parenting classes, she was unable to absorb the information 

and act upon that information. 

 While appellant argues she was not given sufficient time to remedy the conditions that 

brought her daughter into foster care, the evidence clearly proves that additional time would not 

remedy appellant’s cognitive functioning nor her inability to ensure the health, safety and 
 - 9 - 

well-being of the child. It is particularly noteworthy 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 (holding that “evidence of the termination of 

rights as to the other children” was relevant to determining whether mother’s parenting abilities 

“created a substantial risk of impairment of bodily or mental function” to the child in question). 

“It 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 [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 reasonable and appropriate services to assist 

her. 

 Whether or not Hampton DSS pursued “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 given the facts before the court.” Id. at 338, 417 S.E.2d at 10. 

 Again, it is clear that while appellant complied 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 safety principles. See Jenkins, 12 

Va. App. at 1183, 409 S.E.2d at 19 (finding that, despite the efforts made by the mother to meet 

the goals set out by the foster care plan, the mother “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 trial court did not err in terminating appellant’s parental rights. 

Affirmed.