COURT OF APPEALS OF VIRGINIA
Present: Judges Decker, Malvea ux and Senior Judge Clements Argued at Richmond, Virginia

HOLLY MALONE MEMORANDUM OPINION * BY v. Record No . 0472-17-2 JUDGE MAR Y BENNETT MALVEAUX OCTOBER 31, 2017 DINWIDDIE DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY Dennis M. Martin, Judge Linwood T. Wells, III , for appellant. Joan M. O’Donnell (M. Brooke Teefey, Guardian ad litem for the minor children; Olde Towne Lawyers, LLP; Teefey Law, P.C., on brief), for appellee.

The Circuit Court of Dinwiddie County (“circuit court”) entere d orders terminating the residual parental rights of Holly Malone (“mother”) to each of her three children. She appeals those orders, arguing that the e vidence was insufficient to war rant termination of her residual parental rights under Code § 16.1-283(B). 1 For the following reasons, we conclude that the evidence was sufficient to support the circuit court’s findings and therefore affirm.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 Mother also assigns error to t he circuit court’s finding that the evidence was sufficient to warrant termination of her re sidual parental rights under Co de § 16.1-283(C)(2). “Code § 16.1-283(B) and (C)(2) set forth individual bases upon which a petitioner may seek to terminate residual parental ri ghts.” City of Newport News Dep’ t of Soc. Servs. v. Winslow, 40 Va. App. 556, 563, 580 S.E.2d 463, 466 (2003). Thus, a conclus ion that the termination of mother’s parental rights unde r one subsection of Code § 16.1-28 3 was warranted means we need not consider whether terminati on was also appro priate under ano ther subsection. See, e.g., Cumbo v. Dickinson Cty. Dep’t of Soc. Servs., 62 Va. App. 124, 127 n.2, 742 S.E.2d 885, 886 n.2 (2013); Butler v. Culpeper Ct y. Dep’t of Soc. Servs., 48 Va . App. 537, 548-49, 663 S.E.2d 196, 201-02 (2006). Here, because we conclude that the circuit court did not err in terminatingUNPUBLISHED- 2 - I. BACKGROUND We review the evidence in the light most favorable to the Dinw iddie County Department of Social Services (“DSS”), the party that prevailed below, aff ording it all inferences that are fairly deducible from the evidence. See Bristol Dep’t of Soc. Servs. v. Welch, 64 Va. App. 34, 40, 764 S.E.2d 284, 287 (2014). July 2013–March 2014: The ini tial involvement of DSS In July 2013, DSS received a report alleging neglect of mother ’s three children, J.A., N.N., and J.I. J.A., a boy, was eightyears old at that time, N.N., a girl, was four years old, and J.I., a boy, was two years old. DSS staff visited mother’s hom e, where she lived with her children and the children’s father; 2 her mother, who was physically impaired; and mother’s two adult sisters, one of whom had he r own two children living withher. Gloria Browder-Parham, a DSS worker who participated in the home visit, testified during the termination proceedings that the home was infested with ro aches, the floor was very dirty, and there was a hole in the bathroom floor. The residents ha d to use a screwdriver to turnon the water in the bathroom, and the children were dirty and ha d not been bathed. In the kitche n, dishes with dried food on them were piled in the sink and on the c ounter. There was little fo od, and items in the refrigerator were uncovered and stale. Mother sh ared a single room with all three of her children and the children’s father. DSS inquired about mother’s finan cial circumstances and learned that Georgia Moore, mother’s maternal aunt, normally handled the family’s money and brought them food as needed. Moore was the payee for mother’s Supplemental Security Income ( “SSI”), which she received

mother’s residual parental r ights under Code § 16.1-283(B), we need not review its decision to terminate her parental ri ghts under Code § 16.1-283(C)(2).

2 Father left the home within one t o two months of DSS’ initial visit. His parental rights were terminated in separate proceedings.- 3 - for intellectual disabilities. M other also received assistance through the Supplemental Nutrition Assistance Program (“SNAP”), but her SNAP card was in the posse ssion of the children’s father. Moore was responsible for ensur ing that rent and utility bills were paid on time, and provided mother with spending money each month. Later that week, DSS discovered that one of mother’s sons and o ne of her sister’s children suffered from untreate d ringworm. A doctor’s visit wa s arranged for the children, but although mother was given ointme nt to treat the condition, her son’s ringworm got worse and her daughter also contracted ringworm . DSS determined that althoug h mother opened the ointment, she was unable to administer the medicine at the appropriate ti mes and in the correct doses. DSS continued to receive reports that mother’s children were be ing neglected, including accounts of filthy household conditions, excessively soiled dia pers, and insufficient food. DSS also received reports that the children sometim es physically at tacked mother. The agency opened a prevention case to monitor the progress of mother and the children’s father in meeting the children’s needs and provi ding for their basic care, but ob served little improvement. March 2014–March 2015: Service pr ovisions and preliminary prot ective orders In March 2014, DSS arranged for Open Arms Family Services (“Op en Arms”) to provide mother with an in-home parent a ide and other assistance. Open Arms staff treated the home for roaches and removed and cleaned clothing and bedding. The pare nt aide, who was in the home three or four days each week for three to four hours per visit, assisted mother with budgeting, managing food and meal planning, hygi ene, and maintaining a saf e home. Open Arms staff also mentored the children. Around June 20, 2014, DSS received a call regarding conditions in mother’s home. Browder-Parham visited the home and found that more people were living there, as each of mother’s sisters had recently ha d a child and the father of one of those children had moved in.- 4 - Browder-Parham observed human feces in the hallway that had bee n “trampled through.” She asked if anyone was going to clean up the feces, but no one too k any action. After a few minutes, she said that someone n eeded to clean up the waste. E ventually, one of mother’s sisters used a towel or cloth to clean “ just that one spot” before sett ing the waste on the kitchen table. Browder-Parham also received a r eport, prior to or during June 2014, that the older son, J.A., was “very aggressive in t he home” and had been involved i n inappropriate “sexual behaviors.” Later reports indi cated that J.A. was involved in a sexual incident with a neighbor and sexual misconduct with his siblings. During home visits, B rowder-Parham also witnessed the younger son, J.I., hit his mother when he did not get what he wanted. On June 24, 2014, DSS filed petitions alleging abuse or neglect of each child and seeking emergency removal orders and protective orders for each. On Ju ly 1, the Dinwiddie County Juvenile and Domestic Relations D istrict Court (“J&DR court”) e ntered preliminary protective orders for all three children. A mong other things, the protect ive orders required mother to: ensure that each child recei ved a daily bath and all prescribed medications; prevent each child from engaging in physical altercatio ns; provide sufficient food and supervision for each child; comply with her service provide rs’ daily household cleaning sch edule and work with them to create weekly meal plans and groc ery lists; and participate in a psychological evaluation. Those orders were extended in August and December 2014. The J&DR court specifically noted in each order that the “conditions (feces, lack of supervision, decayin g food) in [the] household create risk of death, disfigurement or i mpairment of bodily or mental functions.” Although parent aide services wer e discontinued in September 20 14, the family continued to receive other in- home services. DSS workers visit ed the home several times each week to ensure that the home wa s clean and safe and the childre n’s basic needs were being met. Mother made some efforts to attempt to care for the home, and t ook turns with her sisters- 5 - preparing meals and performing chores. However, mother was una ble to complete many basic, daily childcare tasks withoutdirection by DSS or other support staff. During Browder-Parham’s frequent home visits, she observe d no significant change in mot her’s parenting skills. DSS ultimately determined that mother remained unable to consistent ly care for and meet the basic needs of her children. Further, due to mother’s cognitive limi tations and the special needs of the children, 3 the children remained at risk f or abuse and neglect while theycontinued to be in mother’s care. March 2015–December 2015: Foster care service plans and additi onal service provisions On March 6, 2015, the J&DR court entered adjudicatory orders f or all three children, finding each was abused or neglected as defined by Code § 16.1- 228. The children were placed in the custody of DSS. When the children were removed from mot her’s home, each was dirty and had a foul body odor. The two younge st children were suffe ring from tooth decay. J.I. required dental surgery, and N.N . had to have some of her teeth pulled. On April 28, 2015, the J&DR court entered orders approvin g foster care service plans f or each child with an initial goal of returning them to mother’s home and a concurrent goal of ado ption. At that point, after more tha n a year of providing mother with services through Open Arms, DSS began to provide servic es through National Counseling Group (“NCG”). Browder-Parham testified that D SS decided “to put a different s et of eyes on the situation because [Open Arms] had been in the home for a while and they f elt they had basically exhausted the services that th ey could offer to have any signif icant change.” Through NCG, DSS provided mother with a pare nting coach who visited with mother two to three days each week for at least two hours a da y. These services were provide d to mother for three to four

3 Browder-Parham testified that J.I. is “on the autism spectrum” and that N.N. was diagnosed with “post[-]traumatic s tress mathematics disorder an d adjustment disorder with mixed disturbance of emotions and conduct.”- 6 - months. As with Open Arms, one of the goals of NCG was to assi st mother with her personal hygiene, which continued to be an issue. During 2015, mother attended and completed parenting classes th rough the Virginia Cooperative Extension Service . By July, the household—includin g mother, her two sisters, and their disabled mother—had moved to a new house. By November, m other was living in her own house which she leased with her aunt, Georgia Moore. When a DS S worker visited the home in November 2015, there was trash in small bags in the kitchen and no trash in the trash can, “but there was something molding/s poiling in the bottom [of the can] , there were roaches, []dishes in the kitchen sink that appeared t o have been there for a while, and [the] water was turned off for the second time since October.” DSS staff also reported trash piled on the floor and back steps of the home and that a window i n the home could not be closed. DSS scheduled two occasions when the children were to visit mother in her new home. The first visit took place during the Thanksgiving or Christmas holidays of 2015. Browder-Parham, who was present fo r the visit, testified that the defective window in mother’s home had not been repaired and was still open and that mother’s only source of heat at that time was an electric heater in th e front portion of the house. To p rovide further heat for the visit, mother opened her oven door. Browde r-Parham explained to mothe r the hazard this presented to the children. The visit was completed at another location, and the second visit was cancelled due to mother’s ongoing lack of adequate heat. December 2015: Mother’s psychological evaluation Two clinical psychologists conducte d mother’s court-ordered ps ychological evaluation during November and December 2015. In their report, they concl uded that mother’s cognitive and emotional functioning is si gnificantly impaired. In partic ular, they determined that her adaptive skills are “within the e xtremely low range indicating moderate to severe intellectual- 7 - disabilities” and that in the c onceptual and social domain, she exhibits a “severe level of intellectual disabili ty.” They noted that DSS and NCG records “suggest that the support from parenting aids [sic] and coaching provided to [mother] for the past two years resulted in minimal improvement to care for the children and the house,” and opined that mother’s “intellectual disabilities explain the minimal success after exhaustive efforts of training with parenting coaches.” The psychologists also concluded that mother’s “skil ls at organizing information, utilizing working memory, mental flexibility and developing pro blem-solving strategies are all significantly impaired, and they gr eatly limit her ability to a dapt. [She] has limited ability to organize schedules and plan meals for the family.” Further, mo ther has “little understanding of written language or concepts i nvolving numbers, quantity, time, and money. She will require significant support for problem-s olving throughout life.” The psychologists recommended that mother “continue to get assistan ce from her aunt for managing h er money and spending” and that she be “assisted with supervi sion of activities of daily living and developing an awareness of cleanliness and hygiene. She need s a high level of structure and support to function in any environment.” Browder-Parham testified that the outcome of mother’s psycholog ical evaluation led DSS to file new foster care service plans seeking the children’s ad option. On December 28, 2015, DSS filed petitions for permanency planning hearings and new fo ster care service plans. January 2016–2017: Permanency pla nning orders, new foster care plans, and termination The J&DR court entered perman ency planning orders for the chil dren on January 29, 2016, finding that termination of pa rental rights was in the be st interest of each child and approving the goal of adoption. D SS petitioned for involuntarytermination of mother’s parental rights to her thr ee children, pursuant to Code § 16.1-283(B) an d (C). The J&DR court terminated mother’s residual parental rights on August 23, 2016 , finding clear and convincing- 8 - evidence to support termination under Code § 16.1-283(B) and sp ecifically noting the applicability of subsec tion (B)(2)(a). Moth er appealed to the circuit court, which heard the matter on January 17, 2017. At the hearing, Browder-Parham testified as described above. S he further testified that she had visited mother the prev ious week and that mother was un employed at that time. One of mother’s sisters was living with her, and m other’s aunt continu ed to manage her bills. Browder-Parham asked mother what her plan would be if her child ren were returned to her home, and “she really did not have a plan. She just said that she would have her sister move out. And that was . . . the plan.” Browd er-Parham also expressed DS S’ concerns about mother’s ability to meet the special needs of some of her children. She stated that both Open Arms and NCG had worked with mother and inf ormed DSS that they had exhau sted the services that they could provide. When asked whe ther she observed conditions in m other’s home getting worse, getting better, or staying the same between summer 2013 and the children’s removal in March 2015, Browder-Parham replied that they “stay[ed] the same.” Mother testified at the heari ng. She stated that the previous summer, she began work as a cleaner and worked eight hours pe r week. However, she had losther job a few days previously after a “run-in” with her boss. L ater, mother testified that s he could still go back to her job if she wanted to, but that she didn’t get along with her boss. She te stified that she could not remember how much money she made, because “[m]y money was going on the c ard.” She stated that her rent was $400 per month and that sh e paid her aunt half that am ount, which she said was $100. When asked how much she receive d in SSI, mother replied, “I don ’t know because my aunt handles my check.” When asked if she had made any preparations for the children to return to her home, mother replied, “I to ld my sister that she had to get out.”- 9 - In its ruling from the bench, the circuit court quoted languag e from Code § 16.1-283(B)(2)(a) providing that a severe intellectual disabi lity constitutes prima facie evidence of the conditions requi red by subsection (B)(2) for te rmination of residual parental rights. Noting that “there was 15 m onths plus the services fro m [DSS] . . . to the parent, services to the children before the termi nation of parental rights was f iled,” the circuit court concluded that mother “still [is] not tak ing care of herself. She doesn’ t have any idea what her household bills are. At some point in time there is no heat in the house .” Further, “[t]he rooming in the house is inadequate . . . . [O]ne of her children has been invo lved in sexual activity that would be a danger to both of her [other] kids, yet she was going to put them in [the] same bedroom together.” The circuit court f ound that the requirements of Co de § 16.1-283(B) had been satisfied, and on March 3, 2017, enter ed orders terminating mot her’s residual pare ntal rights to J.A., N.N., and J.I., pursuant to Code § 16.1-283(B) and (C)(2) . This appeal followed. II. ANALYSIS “When reviewing a decision to termi nate parental rights, we pre sume the circuit court ‘thoroughly weighed all the evidenc e, considered the statutory requirements, and made its determination based on the child’s best interests.’” Toms v. H anover Dep’t of Soc. Servs., 46 Va. App. 257, 265-66, 616 S.E.2d 765, 769 (2005) (quoting Field s v. Dinwiddie Cty. Dep’t of Soc. Servs., 46 Va. App. 1, 7, 614 S.E.2d 656, 659 (2005)). Th e circuit court has “broad discretion in making the decisi ons necessary to guard and to fo ster a child’s best interests.” Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (199 0). “Therefore, in a case involving termination of parental r ights, ‘[t]he trial court’s judgment, when based on evidence heard ore tenus , will not be disturbed on appeal unless plainly wrong or witho ut evidence to support it.’” Eaton v. Wash. Cty. Dep’t of Soc. Servs., 66 Va. App. 317, 324, 785 S.E.2d 231, 235 (2016) (alteration in original ) (quoting Fields, 46 Va. App . at 7, 614 S.E.2d at 659).- 10 - In order to terminate residua l parental rights under Code § 16 .1-283(B), a court is required to make three findi ngs based upon clear and convincing evidence. Butler v. Culpeper Cty. Dep’t of Soc. Servs., 48 Va. App. 537, 547, 633 S.E.2d 196 , 201 (2006); see Code § 16.1-283(B). First, the termina tion of residual parental rig hts must be in the child’s best interests. Butler, 48 V a. App. at 547, 633 S.E.2d at 201. Sec ond, the child must have suffered neglect or abuse that “presente d a serious and substantial thre at to his life, health or development.” Code § 16.1-283(B)(1); see also Butler, 48 Va. App. at 547, 633 S.E.2d at 201. Third, the court must find that it is “not reasonably likely th at the conditions which resulted in such neglect or abuse can be subs tantially corrected or elimina ted so as to allow the child's safe return to his parent . . . within a r easonable peri od of time.” Code § 16.1-283(B)(2); see also Butler, 48 Va. App. at 547, 633 S.E.2d at 201. On appeal, mother argues that the circuit court erred in findin g sufficient evidence to terminate her residual pare ntal rights under Code § 16.1-283(B) . Specifically, she argues that the evidence was insufficient to s upport findings under the second and third prongs described above. A. Neglect or Abuse Presenting a S erious and Substantial Threat Mother asserts that the eviden ce was insufficient to find that the neglect or abuse suffered by each of her children presente d a serious and substantial thr eat to their life, health, or development. See Code § 16.1-283( B)(1). She acknowledges thatwhen DSS first became involved with her family, her living conditions at that time co nstituted a neglectful environment that may have harmed her children ’s health or development. How ever, mother argues that whatever conditions initially m ay have existed ceased once she was living in her own home. A review of the record reveals a bundant evidence that mother’s children suffered neglect or abuse presenting a serious and s ubstantial threat to their l ives, health, or development throughout their time living with mother. When DSS first becam e involved with mother and her- 11 - children, they were living in highly unsanitary conditions. Li ttle food was available for the children, and their medical and de ntal problems were untreated. One child later was diagnosed with post-traumatic stress diso rder, and another was violent to ward mother when he did not get his way. The oldest child was e ngaging in inappropriate sexual activity. The children lacked adequate living space and were sh aring a single bedroom with mo ther and their father. Further, mother was not in control of her own finances and funds for the children were only intermittently available. Despite intensive efforts by DSS, Open Arms, and ot her service providers, DSS saw no improvement in conditions during the nearly two years betwee n their first contact with mother and the children’s removal from the home. Further, contrary to mother’s argument, her move to a home of h er own did not mean the previous conditions which resul ted in neglect or abuse no longe r existed. While the new home was less crowded, it contained roaches, molding or spoiling was te, improperly disposed of trash, a dirty kitchen, inadequate heat, a nd a water supply which repe atedly was turned off. Moreover, even in her new home, mother’s cognitive limitations continued to negatively impact her ability to provide a safe and materially a dequate environment for her c hildren. Mother s till was not in control of her finances, or even a dequately aware of the financ ial demands upon her household. When DSS arranged a home vis it during the holiday season in lat e 2015, mother tried to heat part of her home with an open oven, cre ating a hazard for her childr en. The conditions in the new home were so problematic that th e visit had to be completed at another location and a second home visit had to be cancelled. As late as the termination hea ring, mother had no plan for how to accommodate and care for her children in her new home beyond asking her sister to move out. The circuit court conducted an e xtensive hearing, during which it heard testimony not only from DSS but also from moth er. The circuit court conclude d that there was clear and convincing evidence that the ch ildren suffered neglect or abuse and that this neglect or abuse- 12 - presented a serious and substant ial threat to their life, healt h, or development. Here, the evidence, viewed in totality, supp orts the circuit court’s find ing.
B. Substantial Correction or Elimination of Conditions Mother also contends that the ev idence was insufficient to find that it was not reasonably likely that she could substantial ly correct or eliminate the co nditions which resulted in her children’s neglect or abuse, so a s to allow their safe return t o her within a r easonable period of time. See Code § 16.1-283(B)(2). Again, mother concedes that during the early p eriod of DSS’ involvement with her family, the re were neglectful conditions i n her home which “either did, or if allowed to continue, would have led to neglect or abuse.” H owever, as above, she then argues that “there are two distinct pe riods in this case”—the period w hen mother and her children were living with their extended famil y, and the period after the chi ldren were placed in foster care when mother was living largel y by herself. Mother again allege s that the physical conditions which brought DSS involvement and a ssistance ceased to exist af ter mother moved to her own home, and thus the circuit court erred in finding that conditio ns of abuse or neglect still existed. Code § 16.1-283(B)(2) provides, i n pertinent part, that Proof of any of the following shall constitute prima facie evidence of the conditions set f orth in subdivision B 2: a. The parent or parents have a m ental or emotional illness or intellectual disabili ty of such severity t hat there is no reaso nable expectation that such parent will be able to undertake responsibility for the care needed by the child in accordance w ith his age and stage of development . . . . Here, as noted above, mother’s ps ychological evaluation indicat es that she suffers from moderate to severe intellectual disabilities and that her cognitive and emotional functioning and life skills are significantly impaired. She has a limited ability to adapt . Also limited by her cognitive deficiencies are mother’s concep tual skills and her understandi ng of written language and concepts involving numbers, time , and money. Further, she has a limited ability to organize such- 13 - aspects of family life as sche dules and plans for meals. In th e examining psychologists’ opinions, mother will require si gnificant support to assist her with problem-solving throughout her life. Thus, the record clearly supports t hat mother’s intellectual d isabilities are severe enough to constitute prima facie evidence, under Code § 16.1-283(B) (2)(a), that there is no rea sonable expectation that she will be abl e to undertake responsibility f or the care needed by her children. And mother fails to rebut this evidence. She argues that her l iving circumstances have improved since DSS first became involved with her family. While mother no longer lives in as crowded a household, DSS reported that eve n after her move, mother proved unable to correct major deficiencies in her living circ umstances. While living in her own home, she has proved unable to consistently provide basic neces sities, such as running water and adequate heat. Her new home was unclean and unhygienic. At the time of the termination hearing, after more than a year in her new residence, mother stil l did not control her own finance s or have regular employment. Her only preparation for undertak ing responsibility for the car e of her children, some of whom have special needs, consisted of telling her sister that she wo uld have to move out of the home if her children were returned to he r. Thus, the changes in mother ’s physical environment have not “substantially corrected or elim inated” the “conditions which r esulted in [the] neglect or abuse” of her children. Code § 16.1-283(B)(2). Here, the evidence, viewe d in totality, clearly supports the circuit court’s finding. III. CONCLUSION The factual findings underlying the circuit court’s order term inating mother’s residual parental rights were neither pl ainly wrong nor without evidence to support them. Thus, we affirm the circuit court’s deci sion terminating mother’s residu al parental rights. Affirmed.