COURT OF APPEALS OF VIRGINIA

Present: Judges Kelsey, Petty and Seni or Judge Bumgardner

LISA SEIWELL MEMORANDUM OPINION *

v. Record Nos. 0908- 09-3 and PER CURIAM 09 09-09-3 NOVEMBER 10, 2009

HARRISONBURG ROCKINGHAM SOCIAL SERVICES DISTRICT

FROM THE CIRCUIT COUR T OF ROCKINGHAM COUNTY James V. Lane, Judge (Roland M. L. Sant os, on briefs), for appellant. Appellant submitting on briefs. (Kimberly Van Horn Gutterman, Assistant County Attorney; Dawn Wine Ruple, Guardian ad litem for the minor children, on brief), for appellee. Appe llee and Guardian ad litem submitting on brief.

Lisa Seiwell (mother) appeals from a decision terminating her parental rights to her two sons, W.W. 1 and D.W. 2 Mother argues that the evidence was insufficient to support the trial court’s decision. Upon reviewing the record and brie fs of the parties, we affirm the decision of

the trial court. Background We view the evidence in the light most favor able to the prevailing party below and grant to it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax County Dep’t of

Human Dev. , 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991).

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

1 W.W. was born August 4, 1998.

2 D.W. was born February 6, 1997.- 2 - So viewed, the evidence proved that th e Harrisonburg Rockingham Social Services District (HRSSD) had been involved with mo ther and her family since November 2006. Officials at the children’s school filed complaints that the children were “smelly” and “filthy.” The children regularly wet their beds and atte nded school smelling of urine. Subsequently, officials reported that W.W. attended school with a bump, bruise, and small gash on his head. Another complaint followed after W. W. sustained a burn on his chest. On April 16, 2007, HRSSD filed a petition chargi ng mother with abuse and neglect. The juvenile and domestic relations district court (juven ile court) entered a preliminary protective order on April 20, 2007, directing mother to und ergo a psychological evaluation and individual counseling, and to allow visits by social services. The court specifically ordered mother to supervise the children properly, refrain from verbal abuse, ensure that the children were clean and well-fed, and to allow the child ren to have social interaction. The juvenile court concluded mother had not provided the children with adequate food, shelter, clothing or supervision since November 2006. The juvenile cour t adopted as true the

facts contained in an affidavit fi led by HRSSD in support of the pr otective order. That affidavit

stated that mother had received services from HRSSD since 2003 and that over the past several months, mother had abdicated her parental re sponsibilities while mother and her live-in boyfriend, Joel Will, used the computer. All th ree children cooked their own meals, did their own laundry and that of their mother, and prepar ed themselves for school. The children were injured on two occasions because mother failed to supervise them while she was on the computer. The affidavit stated further: Ms. Seiwell only leaves the computer to use the bathroom and sleep. As of March [20]07 Ms. Seiwell had stopped bathing and stopped getting dressed and stayed in her pajamas all day in front of the computer. Ms. Seiwell has quit her job in December of [20]06 and has not gotten another one. Ms. Seiwell and Mr. Will told the children that they are ta king medication for mental issues,- 3 - are going through a hard time and th e children need to be on extra good behavior because of this. . . . The children feel that any question or comment made to the mother is replied [to] by an angry remark or shouting. Due to this, [C.W.] 3 confines herself to her room. . . . [W.W.] was observe d to cry and “curl up in a corner whimpering like a dog” after Mr. Will screamed at him. Another time when [C.W.] was frying an egg, she wet her pants rather than ask her mother to watch the stove while she excused herself to use the bathroom, fearing that her mother would yell at her. * * * * * * * All three children suffer from enur esis. [C.W.], with the help of the mentor provided by DSS appears to be overcoming this problem, but the boys routinely wet the bed. Odor of urine from the urine soaked sheets and the animals filled the house. The family has currently moved to a trailer which DSS helped pay for and had to get rid of the animals. There are concerns of the children not having enough food to eat. The children don’t eat breakfast and have gone to the neighbor’s [home] for dinner because there is not enough food at home. At school [W.W.] and [D.W.] have been observed to have dirty clothes, smelling of urine with an overall disheveled appearance. Despite numerous conversations abou t this issue with Ms. Seiwell, their conditions have not improved. In a recent conversation . . . Ms. Seiwell . . . became hostile [and] . . . stated to [the social] worker five times to take her chil dren and that life would be easier if DSS would take them. The juvenile court entered an order on August 9, 2007, which, in addition to the directives contained in the prel iminary order, precluded mother from moving the children from Rockingham County. The order specifically notified mother that the juvenile court could remove the children at the review hearing schedul ed for September 12, 2007, should mother fail to comply.

3 C.W. is the older sister to W.W. and D. W. but was not subject to the termination proceeding due to her age.- 4 - HRSSD provided in-home services to mo ther throughout the summer of 2007, including assistance with parenting, transportation, and employment. HRSSD had already provided services in the form of food stamps, a deposit fo r the family’s trailer, a big brother for D.W., mentoring for C.W., and a psychol ogical evaluation for mother. Mother had been unemployed

since November 2006. Prior to the review hearing, mother sought permission from th e juvenile court to relocate the children to Washington State. Although th e court denied the motion, mother moved the

children with her to Washington on September 24, 2007, to be with a man she had met over the internet in February 2007. At th at time, mother was be ing evicted from her home. On November 2, 2007, the children were removed from moth er’s custody and returned to Virginia. Mother remained in Washington for approximately anothe r year after the ch ildren’s removal. The initial goal after th e children’s removal was to return them to mother. Mother continued to have weekly phon e calls with the children th rough January 2008. After receiving complaints that mother was upsettin g the children by pr omising to reunite w ith them and/ or to send them gifts, HRSSD restricted the phone calls to supervised phone contact for fi fteen minutes every other week. Mother was employed in Washington, but did not a ttend parenting classes or counseling. She saw the children on only one occasi on from the time of their re moval until November 20, 2008. At that time, more than twelve months afte r the children’s removal, HRSSD prepared a new service plan changing the goal to adoption. Mother moved from Washington in December 2008, but did not return to Virginia. Instead, she moved to New York to be close to her mother and other family members. HRSSD attempte d to arrange a visit between the children and their mother in January 2009, but mother lacked the funds to make the trip fro m New York. On February 2, 2009, the juvenile court te rminated mother’s resi dual parental rights pursuant to Code § 16.1-283(C)(2). Mother appealed that decision to the trial court, which- 5 - conducted an ore tenus hearing on April 24, 2009. The foster mother, Becky Gregory, testified that the two boys, as well as th eir older sister, C.W., lived with her and her husband from the time of their removal in November 2007 until D.W. and C.W. moved out in February 2009. All

three children wet the bed on a re gular basis, but would not tell Gregory about it. Instead, she testified, “They would get up and go to the bathro om after they had already wet the bed, go get a towel and lay it down and then lay down on top of it.” The boys did not know how to urinate into a toilet or to wipe prope rly after bowel movements. The children did not brush their teeth and resisted Gregory’ s requests to shower. Shortly after the children’s placement with her, Gregory t ook C.W. to the doctor because her urine was foul smelling. She was diagnosed with a urinary tract in fection. D.W. also

received medical attention afte r Gregory noticed he had difficu lty hearing. The doctor told Gregory D.W. had a permanent hearing loss of thir ty five percent in bot h ears. The Gregorys provided D.W. with hearing aids. Gregory also acknowledged that all thr ee children experience d anger and anxiety, especially following phone contac t with their mother. She noted that the children became especially upset when mother failed to follow th rough with promises to vi sit them or send them gifts over Christmas. The child ren’s therapist testif ied that “[T]he boys . . . have been disappointed over and over again and have really lost faith. Even though they try desperately to hold on to that faith in their mom I think they really have lost faith.” D.W. told the therapist his mother had “disappointed” and “lied” to him. The relationship between the two boys was st rained from the time of their placement and deteriorated over time, with episodes of physical violence. In November 2008, D.W. broke down with his therapist and cried for the first tim e. He told her no one – not his siblings, his mother, or foster family – loved or cared about hi m. Instead, he stated the family loved W.W.- 6 - Concerned that D.W. was at risk of being pla ced in residential treatm ent, HRSSD moved D.W. to a new “foster to adopt” home in February 2009. His therapist noted he was no longer at risk of residential placement since his relocation, that he appeared “more focused,” and that his self-esteem had improved. The therapist noted that W.W. was “very attach ed to the Gregorys and they with him[.]” The Gregory family wanted to adopt W.W., a nd encouraged visitation between W.W. and his brother and sister and expressed its willingness to continue such visitation after adoption. Mother testified she was employed during the year she resided in Washington, but acknowledged she did not pay child support in 2008. Nevertheless, she claimed all of her children as dependents on her 2008 income tax re turn. She explained she did not attend the parenting classes in Washington because the cl asses focused on caring for infants and she was waiting for a class directed toward parenting ol der children. By the time such a class became available, mother had decide d to relocate to New York. After hearing and considering evidence and ar gument, the trial court granted the petitions to terminate mother’s parental rights. It found that more than twelve months had passed and mother had failed to remedy the conditions which led to the children’s removal. The trial court expressed concern about the instability in the ch ildren’s lives resulting from mother’s actions. Specifically, it noted that mother had failed to take advantage of the services provided to her in Virginia and had deliberately viol ated the juvenile court’s order not to move the children out of state. Although the tria l court expressed regret that the boys had been se parated, it observed that they “seemed to be doing well now.” When addressing matters concerning a chil d, including the termination of a parent’s residual parental rights, the paramo unt consideration of a trial court is the child’s best interests.

See Toombs v. Lynchburg Div. of Soc. Servs. , 223 Va. 225, 230, 288 S.E.2d 405, 407-08- 7 - (1982); Farley v. Farley , 9 Va. App. 326, 329, 387 S.E.2d 794, 796 (1990). On review, “[a] trial court is presumed to have t horoughly weighed all the eviden ce, considered the statutory requirements, and made its determination based on the child’s best interests.” Farley , 9 Va. App. at 329, 387 S.E.2d at 796. Furthermore, the evidence is viewed in the light most favorable to the prevailing party below and its ev idence is afforded all reasonable inferences fairly deducible

therefrom. Id. at 328, 387 S.E.2d at 795. Code § 16.1-283(C)(2) provides that the residua l parental rights of a parent may be terminated if the trial court finds, based upon clear and convincing evidence, th at it is in the best

interests of the child and 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 agencies to such end. Decisions to terminate parent al rights under Code § 16.1-283(C) hinge not so much on the magnitude of the problem that created the original danger to the child, bu t on the demonstrated failure of the parent to make reasonable changes. Considerably more “retrospective in nature,” s ubsection C requires the court to determine whether the parent ha s been unwilling or unable to remedy the problems during the period in which he has been offered rehabilitation services. Toms v. Hanover Dep’t of Soc. Servs. , 46 Va. App. 257, 271, 616 S.E.2d 765, 772 (2005) (quoting City of Newport News Dep’t of Soc. Servs. v. Winslow , 40 Va. App. 556, 562-63, 580 S.E.2d 463, 466 (2003)). The trial court’s findings, “‘when based on evidence heard ore tenus , will not be disturbed on appeal unless plainly wrong or without evidence to support [them].’” Logan , 13- 8 - Va. App. at 128, 409 S.E.2d at 463 (quoting Peple v. Peple , 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988)). The evidence established that mother received various levels of services, yet she was unable within a twelve-month period to remedy the conditions that brought the children into foster care. During the time mother had custody of the children, she did no t attend to their basic needs or take advantage of the services offered to her. She deliberately violated a court order not to remove the children from Virginia and, afte r the children’s remova l, did not maintain visitation with the children or support them financially. HRSSD presented clear and convincing

evidence that termination was in the best interest s of the children and that mother was unable or unwilling within a reasonable amount of time to remedy the conditions that brought the children into foster care. Accordingly, the de cision of the trial court is affirmed.

Affirmed.